Path: utzoo!dptcdc!jarvis.csri.toronto.edu!mailrus!tut.cis.ohio-state.edu!ucbvax!pasteur!ames!sgi!arisia!quintus!ok
From: ok@quintus.UUCP (Richard A. O'Keefe)
Newsgroups: comp.misc
Subject: Re: New Communicational Morality
Keywords: software, copyright, society
Message-ID: <1012@quintus.UUCP>
Date: 18 Apr 89 05:17:30 GMT
References: <754@infovax.lan.informatik.tu-muenchen.dbp.de> <3687@ficc.uu.net> <1672@orion.cf.uci.edu> <1038@afit-ab.arpa> <29140@apple.Apple.COM>
Reply-To: ok@quintus.UUCP (Richard A. O'Keefe)
Distribution: na
Organization: Quintus Computer Systems, Inc.
Lines: 78

In article <29140@apple.Apple.COM> desnoyer@Apple.COM (Peter Desnoyers) writes:
>What people may be forgetting here is that intellectual property is
>"created" by the legal system. Without laws governing intellectual
>property, it is worth little to nothing. ...
>[* There are other ways to recoup investment without using the concept
>of intellectual property, mostly based on making the cost to steal
>higher than the cost to buy - e.g. copy protection or low-cost
>production. That is beside the point.]

Er, if something isn't _property_, how can you _steal_ it?

There are several philosophies of law, ranging from "right is whatever is
in the interests of the State" to various theories of "natural rights".
You will find some of them arguing that property (like other rights) is
a creation of the legal system.  Some.  Not all.  The argument that
"without laws governing X it is worth little to nothing" is flawed;
(a) what counts is not _laws_ as such but laws which are effectively
    communicated to the popular culture and _enforced_. 
(b) you can use precisely the same argument to show that human life is
    worth little to nothing.
(c) "worth little to nothing" is not the same as "has no existence
    independent of the law".

I claim that there is an important issue here which has nothing to do with
"investment", "buying", or "costs".  If other people have a "right" to every
line of code I write, how do they get it?  Do the police batter the door down
at 4am?  (I may still be working at 3am (:-).)  If they have a right to some
piece of code that I wrote on my own time for my own interest, have they the
same right to a letter I wrote to a friend?  If not, why not?  You cannot
assert that the public has a right to all my programs without denying me a
right of privacy.  What's the difference between a program I wrote for my
own use and a painting I painted for my own wall?  The painting can be
copied, after all, and I can even generously be given a copy.

It would clarify our thinking if we banished meaningless abstractions like
"the public" and "the state" from the discussion, and talked about the
effects on typical individuals.

Consider the case of a sick man who needs the assistance of some complex
piece of computer-operated medical equipment for a while.  Assume, for the
sake of the argument, that he has paid whatever taxes (whether to an
accountable agency such as the government or a non-accountable agency
such as an insurance company) are deemed appropriate for the recipient of
the taxes to grant him medical assistance, and that he is in every respect
an admirable person.  Suppose that there is a programmer who has just
produced a much improved program to operate the equipment (and, to keep
the argument simple, that it has been thorougly tested).  Does someone have
a right to seize that program from the programmer for the benefit of the
sick man?

Well, a little reflection shows that we _can_ set things up to permit that
without denying the concept of intellectual property and without denying
that the programmer has a right to recompense.  It's already done in the
case of real property (that is, land).  I believe the name is "eminent
domain".  The government can seize your land over your objections, but they
must pay you a fair price.  (For practical purposes, they get to pick what
is "fair", but if they are _too_ unfair too often they may not hold power
for long.)  Similarly, it would be possible to grant some level of
government the power to make copies of some classes of programs for
specified purposes (national security, saving life, whatever) yet still
require recompense.

I would like to point one thing out about software.  It is a lot of fun
putting the prototype together.  We see a lot of prototypes in comp.sources.*
It is fairly unrewarding slog to get the thing into a state where it is fit
for use by ordinary people.  There are some very good programs available for
free, but there is an enormous amount of *junk* where people have had their
fun and gone on to do the next thing.  You will probably find a lot of
people who are willing to work for peanuts doing the exciting stuff, but I
seriously doubt that you will find them turning the prototypes into reliable
products without the assurance that the money they make from the products
will pay for the next bout of fun with a new prototype.

So it is in the sick man's interest for the programmer to be rewarded well
for the program to operate the medical equipment, because that means that
he will not only have the resources to build the next prototype, but will
still have the motivation to make it work reliably.  (I assume that someone
who is sick now is likely to be sick again in the future.)