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

[Don Parris]

On 3/28/06, doc <edoc7 at verizon.net> wrote:
> > Following your logic, people who download
> > CHADDB without compensating me are stealing from me.
>
> In my post I was clear to state that you are free to
> choose to make the product of your creative labor
> free or for-fee.
>
> *Only* if you have made it for-fee have they stolen
> it if they download or copy it from any source without
> your express waiver of the for-fee payment to you.
>
> > 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.
>
> "artificially"?
>
> Your creative labor has intrinsic value.
>

You are correct.  But copyright is an artificial means of increasing
the value of my labor.  WIthout a system of copyright, my labor would
likely have far less value, as there would be no way to ascertain what
is fair and what is not, other than whatever agreement I come to with
another person.  Copyright thus artificially inflates that value in
limited ways for a limited time, though the major players in this
arena are seeking to extend copyright permanently.  Hence, the
argument that we are heading down a dangerous road.



> If you choose to make a gift of it to others that is
> your choice.
>
> To label in the pejorative those who do not *choose*
> to gift the product of their creative labor seems improper.
>
> > Even without a non-free license, my labor has value.
>
> Agreed.
>
> > Getting that value out of my
> > labor without depriving others of the possibility to help themselves
> > deprive others of their fair use rights, or even to prevent sharing,
> > in order to profit from my labor.
>
> Disagreed.  No one has any *right* to the product of
> your creative labor.  That concept is a product of
> communist and socialist philosophers and has no
> grounding in the realities of advancing and productive
> societies because it ignores the realities of fallen
> human nature.
>

Then you misunderstand the nature of copyright.  Copyright (and
patents, too) is founded on the principle that we do not own ideas,
but need a way to encourage people to be more productive.  Extending
the time limitations has the effect of discouraging this very
productivity that the time limitation was designed to encourage.

Patents fit the bill here as well.  When Bell invented the telephone,
there was an Italian who beat him to the draw, but was too poor to be
able to afford the patent fee.  The Thus, we can have the same idea at
the same time.  In that case, who owns the idea?  No one "owns " the
idea.  That is silly.  However, granting rights of ownership via a
system of copyrights and patents goes a long way towards increasing
productivity.  However, there have always been limits on the rights of
the "owners", as a benefit to the whole society.  If It is socialist,
is part of the American experience.

Additionally, the extension of time limits over the past 30 years or
so has dramatically reduced the amount of material in the public
domain, from which people are free to draw.  This partly how our
culture has been built over the last two hundred + years.  Indeed, in
most cultures, there was no concept of copyright.  Thus, people have
long borrowed ideas from each other.  Consider the black churches in
America.  I thought re-mixing music was something new back in the
1980's.  Yet, attending a predominantly black Baptist church for
several years taught me otherwise.

Culturally, blacks just about wouldn't have a culture if they didn't
borrow (or "steal" as some would have it) ideas from each other. 
Today, many black spirituals incorporate portions of the great hymns
in re-mixed fashion.  Additionally, some of the newer music includes
portions of those hymns - mostly in the public domain.  The first
verse of "Love Lifted Me" is beautifully incorporated into an awesome
song that can be heard in many black congregations and gospel radio
stations.  There is nothing inherently wrong with the idea.

It almost makes me wonder if Stallman and Torvalds, who recognized he
was "standing on the shoulders of giants", didn't also study the
musical culture of Black Americans.  Come to think of it, Doc Watson
learned African rythms and set them to gaelic tunes as part of his
contribution to Bluegrass music.  We learn from each other, and it
does not always cost  in terms of a financial investment.  Free
software licenses ensure the continuity of this kind of exchange. 
Non-free software hinders it by making it more difficult to carry on.

> > 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.
>
> These are value-added fees, again purely optional.
>
> One may *choose* to gift ones "source" or one's "customization"
> or both or neither.
>
> Compulsion to gift, social or legal, is improper.
>

I am not so much concerned with trying to compell people to give,
although I sure would love to convince a few more that doing so is,
paradoxically, in their best interest.  My real concern here is that
the American system of copyrights and patents has always limited the
"rights" of the holders in order to benefit the larger society.  It
was determined that copyrights and patents should be limited so that
others could - at some point - have access to the materials and
technologies in question.  That, of course, meant that the
copyright/patent holder had to start working on their next project
before too long.

> > 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.
>
> Both are free choices, he may demand royalty rights in
> advance or only a one time fee, either way he is paid
> for the product of his creative labor.
>
> > The same can be said for software.
>
> Agreed.
>
> > Remember, the author does not actually own the ideas
> > incorporated in the software.
>
> Sure he does, that is the principle that underlies
> patents.
>
> > (S)He merely has the rights
> > of ownership, subject to fair use, for a limited time.
>
> That is a choice that was made by the legislative authors
> and supporters of our current patent law , but there is no
> presumption at any time prior to the patent nor during the
> period of the patent that one *must* gift anything.
>
> That patents may under certain circumstances end and
> the creative labors of some end up in the public domain
> is an interesting concept worthy of discussion but
> nothing about that goes to an obligation to gift.
>

Again, I am not talking about an obligation to gift.  I am talking
about maintaining a balance that our systems have always maintained,
up until the last 30 or so years.

> > 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.
>
> There is on the part of the majority of those driving the
> free software movement a presumption of collateral profit.
>
> Just a few examples:
>
> Fees for customized extras,
>
> Offers of employment based upon the evidence of competence
> and/or referrals flowing from their gifted app,
>
> Commercial products marketed in relationship to their gifted
> apps,
>
> etc.
>
> I acknowledge that there are some who gift the product of their
> creative labor to the open marketplace with no expectation of
> anything financial, direct or collateral, in return but I will
> argue without access to hard research that were such research
> to be conducted they would prove to be a fractional minority.
>
> > 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.
>
> It is a false postulate.
>
> That *some* assert their appropriate right to the product
> of their creative labor does not make all such assertions
> by anyone legitimate.
>
> That some make illegitimate claims does not invalidate
> all claims.
>
> If the song was licensed and the Girl Scouts failed to do due
> diligence to discover if they were depriving the rightful owner
> or reasonable compensation then nothing bad in this.
>
> That the rightful owner chose to enforce their rights vs the
> Girl Scouts is an entirely different question.
>
> Then again, the rightful owner may not be in agreement with
> what the Girl Scouts are all about these days and may not
> be happy that their creative labor is being used without
> compensation to assist that organization.
>

Well, we're a bit shy on the details.  Not sure what caused the flap.

> >> 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.
>
> I disagree.  I am only aware of two economic philosophies
> which draw such a postulate, communism and socialism, and
> both have long-since been proved dysfunctional in the
> real world.
>

I'm sorry, I thought we were discussing a legal philosophy, not an
economic philosophy.  This is one of my big gripes about
pro-proprietary proponents.  They always resort to the capitalism vs
communism framework because they cannot seem to get their head around
the fact that something intangible cannot be fully equal to something
tangible.  Nor can they seem to get their head around the fact that
our socio-economic-political system, being driven in no small part by
the interests of "big business", is leading us away from the balance
that our system has always sought to maintain.  So they cannot help
but resort to the old, capitalism vs communism routine.

> All of the products of ones creative labors have intrinsic
> value and their creators has sovereign control thereof
> unless they have implicitly and intentionally waived
> such rights.
>
> >> 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."
>
> That it is not unique does not infer legitimate authority
> to extrapolate some principle of non-rights.
>

There was a legitimate authority.  It is called the Law.  It is the
American Copyright system, as it was originally devised - or at least
much closer to that.

> This is just not clear thinking from "Free Culture".
>

You should read the book before making such a statement.  It is rather
informative.  The story of the Causby couple is rather eye-opening in
this regard.  Their rights had to be balanced against the rights of
the government (and the general public, for that matter).  I'll leave
it for you to explore.

> > 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.
>
> No, this is not correct.
>

It is too correct.  If you understood that the original intent of
copyright was to balance the "rights" of the copyright holders against
those of the general public, then you would know our system is
weighting the scales more and more on the side of the holders, and
leaving the general public hanging in the wind.  Congress has been
changing the system to favor the holders, over against the public. 
Congress must maintain the balance.


> Each could have easily gone to the prior "owner" and
> requested permission to use the product of his creative
> labor rather than just appropriate it without asking
> and use it for personal gain -- that surely meets the
> definition of theft.
>
Again, you misunderstand the copyright system.

> Requesting permission to use is a basic courtesy
> common to civilized societies.
>
> Paying a fee or a royalty is a common means of
> recognizing the factor of value of the creative
> labors of another in ones own multi-source product.
>
> >> 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.
>
> I was perhaps less than precisely detailed in my
> statement.  I was not intending to infer that I
> had in mind a specific list of non-legitimate
> restrictions, I was merely allowing for such.
>
> Were I to make a quick effort to contemplate some
> they might include restrictions on elements of a
> work that are attributed to others and are used
> *with permission* but which carried non-waiverable
> conditions for which some restrictions may not
> be "legitimate" or "permissible".
>
> > To assume that exlcusive rights means un-limited or
> > un-balanced seems a bit off-base, even if understandably so.
>
> I am not certain to what this refers.
>

This refers to the idea that a copyright holder's "rights" are above
those of the general public.  Any basis for this view in American Law
is surely most recent, for it has never been upheld before.  Again,
the balance comes to view.  Your rights must be balanced against
mine/the public's.  Just as Americans run the risk of becoming
apathetic regarding our Constitutional freedoms in the light of 9-11,
we also run the risk of accepting further erosion of our freedoms
under copyright.  Thus, to me, it is un-American to give up my
freedom, either way.

I do not suggest - nor have I ever - that people *must* give away
those things for which they hold copyrights or patents.  I do suggest
that people - Americans, anyway - must recognize that copyright is a
balancing act, and that the public does too have rights to what a
person has created.  Balancing those rights is the context in which
the FSF has, from the beginning, cast the debate.  Others have come
along and turned it into something else.

I do hope this helps to offer clarity to my side of the discussion.

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