[CS-FSLUG] Proprietary Software: Capitalism or Greed?

[Don Parris]

On 3/27/06, doc <edoc7 at verizon.net> wrote:
> >> Most proprietary software advocates like to ignore the second part,
> >> though. The profits gained from a free market follow the law of supply
> >> and demand. If your supply outpaces the demand, then prices fall. When
> >> your supply trails the demand, prices rise.
> >>
> >> The supply of software is nearly infinite. One can make a perfect copy
> >> of any software. And one can continue making perfect copies without
> >> degrading the original. So as the supply approaches infinity, the price
> >> drops closer to zero.
> >>
> >> That is why proprietary software companies can not survive in a
> >> capitalist economy. They produce a nearly valueless product.
> >>
> >> A proprietary software license is an attempt to artificially reduce
> >> supply so prices rise. In other words, proprietary licenses counteract a
> >> free market. And, therefore, goes against the very definition of
> >> capitalism.
> >>
> > Interesting, and I agree.  Essentially, it's a form of price gouging.
> > Would that be a fair assessment?
> > Don
>
> NO!
>
> The rules of clear reasoning have been violated here
> such that an irrational assumption followed by logical
> steps has resulted in an irrational conclusion.
>
> The assumption is that the product of a person's labor
> is only valueless and subject to uncompensated theft
> if it is software.
>

This is only possible in the case of certain non-free (mostly
commercial) programs.  Following your logic, people who download
CHADDB without compensating me are stealing from me.  It is only
possible for the value of my labor to be deflated if I artificially
inflate it first by making it non-free and commercial.  Even without a
non-free license, my labor has value.  Getting that value out of my
labor without depriving others of the possibility to help themselves
also is certainly a challenge.  However, it is not necessary to
deprive others of their fair use rights, or even to prevent sharing,
in order to profit from my labor.

I would argue that people can and do profit from free software.  Even
RMS himself has stated that people should charge a fee to distribute
free software (see the FAQs at fsf.org).  As an example, the FSF
offers source code for a free download.  If you would like
custom-built binaries for your hardware platform, check out the FSF
store.  I don't know for sure what Stallman made from technical
consulting, but you could pay him to add a custom feature to GNU
emacs, I'm sure.  It might cost a bit, but paying him would save a few
bucks in the long run since he wrote it.

Likewise, a local photographer I know doesn't believe in charging
royalties.  As the photographer, he owns the copyright on photos he
shoots (unless he assigns the copyright in a "for-hire" agreement). 
He figures if he didn't charge enough for his photo that earned you
$50k, shame on himself for not pricing the job correctly.  The same
can be said for software.  Remember, the author does not actually own
the ideas incorporated in the software.  (S)He merely has the rights
of ownership, subject to fair use, for a limited time.

> Let's apply this consistently and watch the entire
> productivity of the world drop dramatically.
>

So how do you explain the fact that the free software community is
growing, and not failing?   How do you explain the growing number of
venture capitalists investing in FOSS-based enterprises?  How do you
explain the fact that many more people are taking up programming and
learning more about computers than would otherwise have the
opportunity to do so in a strictly non-free environment?  I could
never have accomplished much of what I have using non-free software.

> The reality is that the product of a person's creativity
> and labor is his or hers to price as he or she chooses,
> the marketplace rules only engage *after* that point.
> If the price and value are a good match to the need or
> desire of the consumer the product will sell, if price
> is out of balance with need or desire it will not.
>

From Lessig's "Free Culture" (http://www.free-culture.cc/freecontent/):
     "This view runs deep within the current debates. It is what NYU law
 professor Rochelle Dreyfuss criticizes as the "if value, then right" the-
 or y of creative property 2—if there is value, then someone must have a
 right to that value. It is the perspective that led a composers' rights or-
 ganization, ASCAP, to sue the Girl Scouts for failing to pay for the
 songs that girls sang around Girl Scout campfires.3 There was "value"
 (the songs) so there must have been a "right"—even against the Girl
 Scouts.
     This idea is certainly a possible understanding of how creative
 property should work. It might well be a possible design for a system
of law protecting creative property. But the "if value, then right" theor y
     of creative property has never been America's theory of creative prop-
     erty. It has never taken hold within our law.
         Instead, in our tradition, intellectual property is an instrument. It
     sets the groundwork for a richly creative society but remains sub-
     ser vient to the value of creativity. The current debate has this turned
     around. We have become so concerned with protecting the instrument
     that we are losing sight of the value.

In other words, I disagree with you to some extent.  There is a
balance.  Capitalism does not always easily find and maintain the
balance required to keep ours a free society.

> In the case of software (or music or writing or similar)
> if someone steals the product of your creativity and
> labor (that is, they use it without compensating you
> at the rate you specify) then they can and should be
> arrested and prosecuted.
>

First, I disagree that a theft has occurred.  A person may not have
been fairly compensated, but a theft, as such has not occurred.  We do
not equate robbery with rape, so neither should copyright infringement
be equated with "theft".  Air is not equal to land; software is not
equal to tangible property.  Secondly, such deprivation of
compensation is only made possible through artificial means.


> This is true of the creative side of hardware.  If you
> design a new car and another manufacturer steals your
> idea and copies it then you have legitimate recourse
> against them because they have not earned the right to
> use the product of your creativity.
>

Again, following from Free Culture:
"It is not just from the invention of synchronized
sound in The Jazz Singer that we get Steamboat Willie. It is also from
Buster Keaton's invention of Steamboat Bill, Jr., itself inspired by the
song "Steamboat Bill," that we get Steamboat Willie, and then from
Steamboat Willie, Mickey Mouse.
This "borrowing" was nothing unique, either for Disney or for the
industry. Disney was always parroting the feature-length mainstream
films of his day.3 So did many others."

This is the kind of creativity that non-free software prevents.  It
was previously allowed, and even encouraged in the past.  But our
legal history is leading us down a treacherous path.

> A more accurate description of software may be the
> "lease" construct vs the outright sale.  When you
> buy software you are merely leasing it ad infinitum
> for a specified purpose without the right to transfer
> it to anyone unless the original terms of use are
> maintained (a single pc/user license is a single pc/
> user license = each copy may be used by only one
> person on one pc at a time).
>
> There is no conflict here with the principles of
> capitalism whatsoever.
>
> Those who *choose* to waive some or all of the
> legitimate restrictions they have to the product
> of their creative labors may do so but they may
> not then cast aspersions upon those who do not so
> choose.  To do so is to bear false witness and to
> claim to know the other person's heart.
>

Not all restrictions are really legitimate, per above.  To assume that
exlcusive rights means un-limited or un-balanced seems a bit off-base,
even if understandably so.

> That I *choose* to use the product of my creative
> labors to earn the capacity to feed and clothe
> and protect my family against the elements hardly
> makes me a bad person.
>

> Have I cast light or only more confusion?
>

Well, you've certainly kept the conversation interesting! ;-)

Don
--
DC Parris GNU Evangelist
http://matheteuo.org/
gnumathetes at gmail.com
"Hey man, whatever pickles your list!"