Dave stirred up an old debate with one of the titans of intellectual property law. Still believing he got the better of Larry Lessig, he links to an old post in which his course of action is to call Lessig’s analogy (comparing source code to published novels) flawed, and then create a number of analogies to Lessig’s analogy (being unable to sing a song just by having the score) that are themselves hopelessly flawed.
Fact is, in that old debate, Dave demonstrated a fundamental misunderstanding of how copyright law works.
He says programmers give the public nothing in return for copyrights. How insulting.
We give our time and our ideas, just like lawyers and college professors.
There’s no equivalent of source code in his two professions. If there were, I could
just invoke the Lessig Defense in court and get the exact same result, every time,
and even better not have to bother with a lengthy trial.
The problem, of course, is that neither “time” nor “ideas” are protected by copyright only the exploitation of creative works. So as a closed-source programmer’s contribution to the world of intellectual property goes, there really isn’t one. See, for example, Pride and Prejudice and Zombies. Because Austen had to release her work in order to distribute it, we all get the benefit of it entering the public domain decades later. This is not the case with software. The only way it will enter the public domain decades later is by reverse engineering and/or leaking it. At that point, though, it will be so antiquated as to be almost useless (see, for example, Frontier).
On the contrary, requiring software to release its source in order to be granted copyright protection would allow us all to learn right now, increasing the capability and knowledge of programmers the world over.
Still, Winer getting schooled by Lessig so badly that Dave doesn’t even know he lost isn’t all that strange. Also not strange, but noteworthy, is Dave pointing to the release of Frontier into the open source community as an example that he was actually right:
[I]n 2004 I released my main work under the GPL. There was no parade, no new
respect or even thanks from people outside the community that already used the
software. Did it inspire any young would-be designers? Time will tell, but it’s
looking doubtful. Just saying it’s harder to influence the future than it should be,
or maybe not — who knows.
The premise, clearly faulty to all of us, is that Dave’s work is so amazing that it should have inspired a young would-be designer, or that it was parade-worthy. Even aside from that, his situation isn’t like what Lessig was proposing. He released it to try to save it from fading into obscurity, rather than initially in order to bolster the community . . . it was one last attempt to make a bloated and dying software platform meaningful. Now, he says because that didn’t, that source disclosure is dangerous?
At the end of the day, it comes down to a very simple principle upon which Copyright (and patent) are based: in order to encourage contributions to the world in the arts and sciences, the government is permitted to offer those who contribute their works to the public a temporary monopoly on their exploitation.
The key here is that the creative folks are expected to contribute. In the day and age that copyright was conceived, there wasn’t a way to exploit one’s creativity without releasing it into the wild. These days, creativity can be holed up and hidden away in compilation and encryption, never to be seen by anyone but its author, but still granted a monopoly all the same.
I can’t say that I agree with all of what Lessig has to say, but he certainly has a very valid point as it relates to the copyright of source code.
