Hacker 2/HACKER2.mdf/cud/cud446a.txt

Text File | 1995-01-03 | 16KB | 263 lines

Date: Sun, 20 Sep 1992 17:27:16 -0700
From: James I. Davis <[e-mail]>
Subject: File 1--J Davis response on Piracy

Regarding Robert Woodhead's and Wes Morgan's response (in CUD 4.42) to
my earlier posting about software piracy and property rights, there
are a few points to which I would like to respond.  (As a disclaimer,
I am not trying to defend the right to bootleg software, that is, to
duplicate and _resell_ software. The discussion below deals with the
unauthorized duplication and sharing of software, where no money
changes hands.)

One common defense raised for intellectual property rights, and
against the unauthorized sharing of software, is that it injures the
creator by robbing him or her of some deserved reward. And on a
related note, the creator is entitled to compensation, and
intellectual property rights are required to guarantee that. [Mr.
Woodhead writes "[by unauthorized copying of software] you are showing
a lack of respect for the creative efforts of other people." Mr.
Morgan writes "If I pour 4 years of my life into the development of
Snarkleflex, I DESERVE to profit from it." Denise Caruso (now editor
of _Digital Media_) wrote a hilarious description a couple of years
ago in an _SF Examiner_ column: "Why would some genius programmer,
slaving away in a dark den redolent of cheese puffs and body odor, be
willing to work for years on a revolutionary new software design if he
or she didn't have any guarantee of being able to make money doing
it?"]

There are several fallacies in this argument.

First, the reality of software production in the late 20th century is
much different than this image. Most software production is NOT a
cottage industry. The industry has quickly matured in the past few
years into a typical monopolized industry. Most patent filings are by
corporations. Most software is not purchased from the individuals who
create the software, it is purchased from companies who have required
their engineers to sign away any rights to whatever they come up with,
AS A CONDITION OF EMPLOYMENT. So IN MOST CASES, the creator has been
separated from the results of his or her creativity. But the image of
the sole-proprietor hacker is raised up as a shield by the software
industry -- the public can take pity on the "defenseless" hacker;
people don't take pity on a Microsoft or an IBM. After invoking the
"harm to the individual" argument, Mr. Woodward later says the
distinction between creator and financier doesn't matter -- the
software sharer is showing disrespect for the person who put up the
cash. ("They risked the money, they deserve the rewards.") Here we get
to the heart of the matter -- we're really talking about the "rights"
of software corporations here; not the hacker, not the consumer, and
not society.

Nowhere do I argue that the people who write software should not be
compensated for their effort. Of course people should be compensated!
The question is how, and how much. Paycheck dollars from a
corporation, a university, a cooperative or the government all spend
equally as well. But the social benefits from the programmer's efforts
are constrained by forcing them through the legal contortions of
intellectual property rights and private ownership. The model that we
have been using is private speculation for private gain, made possible
via exclusive monopolies granted by the government, enforced by law. I
am saying that other successful models exist and have generated useful
products. The subtext in the "I deserve a reward" argument is that
someone who comes up with a really useful idea should get a special
reward. Fine. I have no problem with public recognition of significant
contribution, even including a cash award. Again, this doesn't
_require_ intellectual property rights.

Third, to repeat my original point, property rights are NOT required
to ensure creative activity. Switzerland didn't have a patent system
until 1907, and the Dutch abandoned a patent system from 1869 until
1912. George Barsalla, in _The Evolution of Technology_, argues that
this did not retard their economic development or their
"inventiveness." Both countries eventually adopted patent laws because
of pressure from other industrial nations. Mr. Morgan says that
"*companies* create for financial gain" (which I certainly agree
with), but puts this forward as if the protection of *their* financial
gain somehow justifies the rest of us having to suffer under
intellectual property rights.  Corporations are not necessary for the
generation of the software we need.

Harlan Cleveland, former diplomat and dean of the University of MN's
HHHumphrey Institute of Public Affairs (I mean, he's a mainstream
guy), wrote in an essay that appears in _Information Technologies and
Social Transformation_ (published by the National Academy of
Engineering): "Is the doctrine that information is owned by its
originator (or compiler) necessary to make sure that Americans remain
intellectually creative?" He answers in the negative, citing the
healthy public sector R&D efforts in space exploration, environmental
protection, weather forecasting and the control of infectious diseases
as counter examples. He concludes the section with a warning. "The
notion of information-as-property is built deep into our laws, our
economy, and our political psyche... But we had better continue to
develop our own ways, compatible with our own traditions, of rewarding
intellectual labor without depending on laws and prohibitions that are
disintegrating fast -- as the Volstead Act did in our earlier effort
to enforce an unenforceable Prohibition."

Fourth, the notion of a solitary inventor is a popular falsehood.  No
one creates in a vacuum. The programmer's skills and creativity rest
upon past inventions and discoveries; publicly supported education;
the other people who produced the hardware, the manuals and textbooks
and the development tools; as well as the artists and accompanying
infrastructure who may have inspired or influenced the programmer. In
this sense, the developer's product is a social product, and
consequently should redound to the benefit of all of society. The
practical problem of compensation for effort and reward for
outstanding achievement can be addressed outside of "intellectual
property rights."

Mr. Woodhead dismisses my position as "welfare for hackers." This is a
rather cheap shot. First, there is nothing wrong with welfare. But Mr.
Woodhead means "welfare for hackers" in a pejorative sense (he adds
that he is being heavily sarcastic). No self-respecting hacker, Mr.
Woodhead suggests, would accept something from the public or the
government. "Any hacker worthy of the name would spurn it." What about
every programmer who works for the government, obtains funding from
the government (including the defense industry), all programmers who
go through school and college (they're subsidized by the taxpayer),
and all programmers who work in universities? Who's left? The public
is already heavily involved in software production, but as is too
often the case, the public finances something, and then turns it over
to private corporations to reap all of the profits from it.

The "welfare" charge also carries a divisive edge to it, implying that
hackers should sneer at welfare. This is a self-defeating position for
the programming community. There has been a mythology that programmers
are a privileged lot, and immune from the vagaries of the overall
economy. Sleeper, awake! All programmers should read the first chapter
of Edward Yourdon's new book, _The Decline and Fall of the American
Programmer_. He rings an alarm bell that big changes are underfoot in
software production. As a current snapshot of the industry, here are
some stats which I submitted to the current CPSR/Berkeley newsletter
(available in its entirety from the CPSR listserver,
[e-mail]): "40,000 jobs were lost in the electronics
industry in the first quarter of this year (compared to 90,000 in all
of 1991), including 9,100 jobs at computer component makers. For the
first time since the American Electronics Association started
reporting software industry figures, software job growth was flat, at
133,400 workers. Wang goes into Chapter 11, with 5,000 workers to be
laid off over the next 30 days... Besides Wang, Digital Equipment cut
20,000 jobs over the past two years, and will cut another 15,000 this
year; Data General now has 7,100 workers, down from a high of 17,000.
Even computer services employment has been dropping, down 7.3% from
its peak at the end of 1989. IBM now will probably cut 12,000
additional workers this year, on top of the 20,000 previously
announced. (But profits are up at IBM!).  Software maker Aldus is
laying off 100 workers, the Disney Park Design Unit is laying off 400
imagineers..." (And I've submitted similar figures for the previous
two quarterly newsletters as well.) The defense industry is expected
to fire 1.2 _million_ people over the next four years, many of them
highly skilled engineers. Programmers do get laid off. I know from
personal experience. I was glad that there was unemployment insurance.
No programmer should be so complacent as to say "it can't happen to
me." So be glad that there is a safety net there, and keep it strong.

Re: my point that intellectual property rights prevent intellectual
effort, including software development, from maximizing its social
benefit: If a copy of Lotus 1-2-3 does have use for people, and people
are prevented from using it (e.g., because of the price barrier), then
its potential benefit is constricted. (For an interesting discussion
of this see Natalie Dandekar, "Moral Issues Involved in Protecting
Software as Intellectual Property," _DIAC-90 Proceedings_, CPSR, Palo
Alto, CA, 1990.)

Mr. Woodhead claims that other users are hurt by the unauthorized
sharing of software, because they end up paying more for the software.
He is too charitable to the software companies. There is no reason to
believe that, in the absence of unauthorized duplication, software
prices would be reduced. The prime directive of capitalism is maximum
profit. That is what pushes the price upwards. He imagines that there
is a point at which the capitalist ("free-marketeer") is satiated and
retires from the feeding frenzy out there in the market. Maybe on
Mars. The capitalist can't say, I've made enough moolah, because he
knows that others are also grabbing for the goods, and whoever gets
the most wins, and drives the competition from the marketplace. His
claim that the purported $24 billion in lost revenue would have been
returned to the customer if the "pirates" didn't exist is absurd. What
does come out of the pockets of consumers is the cost of financing
legal battles between an Intel vs. AMD, or Apple vs. Microsoft, or
Ashton-Tate (RIP) vs. Fox, over who exactly does own a design or an
interface or a language (!).

Mr. Woodhead says that no companies specialize in educational
software. If this in fact is the case, then this only reinforces the
argument for the necessity of some sort of social or public or
community (or whatever you want to call it) funding of educational
software development. Just because there is no "market" for quality
educational software does not in any way mean that there is no _need_
for it. Woodhead blames the schools for sabotaging the educational
market by unauthorized duplication -- this, I would suspect, is more
the result of teachers trying to fulfill their professional commitment
of educating children, in the face of deep cuts in education spending
and the reluctance (or refusal) of vendors to negotiate affordable
site licenses. (See e.g., the 9/92 issue of _MacWorld_ for more on
this).

A similar argument _against_ the market, and _for_ public
participation in these matters is powerfully articulated in the work
of Prof. Herbert Schiller (most recently in _Culture, Inc.: The
Corporate Takeover of Public Expression_; for a briefer discussion see
his article "Public Information Goes Corporate" which appeared in the
October 1, 1991 issue of _Library Journal_).  He quotes ( in _Culture,
Inc._) a 1986 interview with the then president of database vendor
DIALOG that appeared in _Information Today_: "We can't afford an
investment in databases that are not going to earn their keep and pay
back their development costs." When asked  what areas were not paying
their development costs, he answered, "Humanities." The tag line above
the _LJ_ article says "a society is emerging in which only data with a
commercial value will be collected." One can extend this to software
-- only software with a commercial value will be commercially
produced.  Marginal markets will be ignored.

Re: Mr. Morgan's notion of more aggressively extending patents to
software: it's already taking place. I think this topic has been
addressed thoroughly by the League for Programming Freedom in their
"Against Software Patents" paper (available from
[e-mail]. The interested reader should also look at
their "Against User Interface Copyright" paper). 17 years (typical for
patents) is an eternity in the evolution of software (as is 10 or 20
years, as suggested by Mr. Morgan). As a sidenote, even the SPA has
opposed software patents.

Re: fair use -- the point I was trying to make is that the concept of
"fair use" has EVOLVED and EXPANDED with increasing ability to easily
duplicate various media. "Taping of television programs for personal
use appears to have become accepted as fair use of copyright material.
This is not in accord with the historical interpretation of fair use,
since the programs are taped in their entirety. The use of the
doctrine in the past has usually been restricted to copying portions
of the work [for purposes of criticism, comment, research, etc.]. The
rationale of the court must have been the unlikely efficacy of trying
to put Pandora back into the box and the fact that no commercial use
of the tapes was either alleged or documented." (Anne Branscomb,
"Property Rights in Information", in _Information Technologies and
Social Transformation_). The point is that legal constructs like "fair
use" are not brought to us by Moses -- they are determined by the
balance of social forces through legal, political, economic and other
forms of struggle. And therefore they are something which we can
affect.

If the persistent reader has made it this far, allow me to conclude
with a quote from an interview with Bruce Sterling that appeared in
the Summer, 91 issue of the excellent and highly recommended print
publication _Intertek_ ($8/year, check payable to Steve Steinberg, 325
Ellwood Beach, #3, Goleta, CA 93117; [e-mail]): "I think that
trying to commodify information -- trying to make it like buying a
chair from Sears -- is just deeply misguided... It looks good on paper
but as you go on year after year, trying to make it a reality, you
find it just doesn't work. There are just too many people, like
myself, who have very little respect for the idea of intellectual
property. I don't pirate software, not because I believe that
intellectual stuff is property, but just because I'm law-abiding.
Information does want to be free -- it doesn't want to be $5 a baud.
There's something stupid about that... I think we'll see a lot more
commodification before we see less. But the idea of information as a
commodity is just wrong. I mean, people say, 'if you could go into
Sears and steal chairs they wouldn't stay in business.' Well if you
had a device that could make infinite chairs for free, Sears would
never have come into existence."

Computer: Earl Grey tea. Hot.

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