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Friday, August 30, 2002

DPR at 11:42 AM [url]:

Open code, not open source (code); Copyright and binary obscurity

The heated discussion begun between Dave Winer and Larry Lessig is expanding in scope. That's good. But I'm really troubled by an assumption that permeates all sides of the debate. It's technical, and it's important.

Let's look at Larry's proposal: limit copyright on binary code (and the source) to 10 years, escrow the source code in some government depository, release it to the public free of encumbrances after the 10 years are up. Dave thinks this proposal is unnecessary - "if it ain't broke don't fix it" is what he said to me a short time ago. (Dave opposes extending copyright's bundle of rights to include revenge rights and maybe even the right for copyright holders to search your machine without a search warrant, i.e. Berman-Coble. I assume Larry does as well.).

Who's framing this debate? One aspect of the context that we ought to examine more closely is the "Open Source" movement (the one captured by Eric Raymond in his Cathedral/Bazaar paper - the religious tract of the open sourcers).

Larry is proposing a crucial distinction in the copyright law between source code and binary code. Dave implicitly accepts this distinction - it's part of the business model he's comfortable with.

But modern programming practice is making this distinction obsolete. Scripting languages are now used everywhere, and commercial code is often developed in part or in full in scripting languages. Scripting languages have no "binary code", and escrowing the source code makes no sense when there is no binary.

I'm involved in a very interesting project (not for this essay) that is being done in Squeak. Squeak (a modern extension of Smalltalk) is a radically late bound environment. It is developed as what I call "Open Code" (rather than Open Source) because there is no binary.

Just as Web pages have "View Source", every line of Squeak Code (including the interpreter itself) is written in Squeak and can be inspected and modified by every user.

The project I have been working on (for a year now) is based on Open Code's advantages: 1) user modifiability (even while running in the code itself), 2) reflection (the ability for code to examine itself and modify its own semantics, and 3) the guarantee that new code is always viable on all platforms (Squeak runs bit-identically on 35 platform types, of which 3 are Windows, Mac, Linux).

These advantages are critical as we go from a state where the PC OS is the platform to a new horizon where the "network" is the platform. It's why we don't depend on binary code separate from source in many modern programming environments.

In copyright law, the lawyers keep making this mistake (the worst example is in the music copyright laws which draw distinctions between mechanicals and other embodiments that made sense when we were pressing vinyl rather than distributing bitstream). The "Open Source" guys put this mistake in the name of their movement. Dave Winer's old business model (distributing the binary of his outlline products) depends on this obsolete model.

Let's not use the words "source" and "binary" in copyright law, whether its in a new proposal or in the case law. The folks who did CONTU got us permanently confused. The "Open Source" guys continue that confusion.

Confused debates lead to the worst kind of laws.

Assuming that "binary" distribution of software is the basis of a business model is also wrong for the business guys. You're going to be exposing your source to your customers. They are going to be examining and modifying it. Build that into your business model. Build that into copyright. In that sense, copyright in software will be more like copyright in books, even if books and software are far, far from the same. Books don't have "binary" versions. In ten years, our kids won't even know what "binary" software is.

When we need to protect the code (either by obscuring it or depending on some legal framework) for business reasons, let's make sure we don't bind that mechanism to some obsolescent and irrelevant practice like "binary" code.

Tuesday, August 27, 2002

DPR at 8:50 AM [url]:

Berman-Coble doublethink

In a defense of Berman-Coble, Congressman Coble claims that there are only two minor [sic] points that activists like blogger and editorialist Cone object to. Here's his rendition of one of those two:

Copyright owners will not be legally liable for "disabling, interfering with, diverting, or otherwise impairing files on private computers." The bill explicitly provides network users with legal redress against any copyright owner who acts beyond the scope of what is permitted by the legislation. This new cause of action supplements all other legal remedies currently available to persons who suffer harm.

As he says, "the bill provides users with legal redress against any copyright owner who acts beyond the scope of what is permitted". But as he says the bill also says that copyright owners will not be legally liable. I.e., copyright owners have rights that ordinary citizens don't, to pursue actions that may have the side effect of damaging contents of personal computers. Then he goes on to say this is already being done by some copyright owners (implying "so what's the big deal"?)

But this is a complete contradiction! At least if the point is to protect private computers from the depredations of copyright holders.

The observation that it is already being done applies to the special CD's being distributed that cause Macintoshes to crash, for example, if they are inserted in the Mac CD drive. The idea that this is obviously OK because it is already being done is another form of doublethink.

As I've said before, there is no need to extend copyright to create vigilante rights. Copyright holders can sue under the existing laws. Why create new rights of poorly restrained vigilantism?

Monday, August 26, 2002

BobF at 8:18 PM [url]:

The Cable Racket!!!

The New York Times ran a news story today (August 26, 2002) about a new arrangement whereby AOL's service would be distributed by ATT via their cable service. At first glance this may appear to be a positive step and years ago I advocated some thing similar though I wanted the ISP, AOL in this case, to have the relationship with the customer.

As reported in the story, however, the deal is very disturbing and makes it clear that something is amiss. To quote the article

After years of insisting that America Online had to "own" its customers and trying unsuccessfully to persuade cable operators to lease the use of their lines as "dumb pipe" for high-speed Internet access, AOL Time Warner's executives came to a realization this summer"

And when a customer buys something on America Online -- online transactions are expected to play a big role in AOL's future -- AT&T Comcast will receive a cut of that revenue. This arrangement is comparable to the way cable operators now generally receive two minutes of advertising time for their own use for every hour of a cable network's programming they carry.

What gives ATT the right to grab revenue from a company just because it uses their wires? Imagine if ATT insisted on taking a cut of every transaction done over its phone lines! It's like taking a taxi to a car dealer and having to pay the cab driver a portion of what you pay for your new car.

Last year when ATT said they wanted to share in the transaction revenue I dismissed it as a fantasy. The very notion indicated a deep misunderstanding of the Internet since the transport service doesn't "know" the content of the packets. The ability of the transport operator to demand a cut of the revenues reminds me too much of days when the railroads had complete control over the farmers.

Something is very wrong and I hope that these kinds of arrangements will make it more obvious.

Note that the title was changed. The original title "Tithing Cable" had too much semantic loading

DPR at 9:27 AM [url]:

More on vengeance rights and piracy

I think I coined the term "vengeance right" to refer to the content of the Berman-Coble bill now under consideration (see previous post). In any case, I just read a brilliant "Letter to Congressman" that points out why each Congress person should stop trying to ratchet up copyright protection towards global thermonuclear war, that makes good use of the concept.

The simple "copyright", which is a rule that allows a creator to bar copying, has morphed into a generalized notion called "intellectual property" by combining it with patents and trademarks and a few other rights that accrue to celebrities' images. It's important to realize that these other rights have nothing to do with what copyright meant. But Congress and the other two branches are on a tear, on the assumption that more protection will somehow increase the production of creative work.

While it is clear that some protection increases the production, too much protection, or the wrong kind of protection, can certainly have the opposite effect. Just look at the problems that an independent documentary producer has in "clearing rights" for any image that might wander into the scene (like for example a copyrighted T-shirt).

Do we really need more "property rights" in "intellectual property"? That's the real question that we should be asking. In fact, we should be asking whether the conceptual basis of "intellectual property" is sound and defensible. Because unlike copyrights and patents, which are very clear and ancient, "intellectual property" is a new legal invention, a new metaphor, proposed by those who benefit from it, and not examined by the majority who might not.

For more, see the Archive.

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