SCN: Intellectual property

[Steve]

x-no-archive: yes

============================

Whose Intellectual Property Is It, Anyway?

by Peter Wayner, author of "Free for All: How Linux and the Free 
Software Movement Undercut the High-Tech Titans"


(NY Times)---There's a war going on. It isn't between ethnic groups, 
provinces, religions or nations. It is between nimble people who 
want to think for themselves and big dinosaurs of corporations that 
want to keep the upstarts penned up and docile.  

This is the war of Open Source, and it is being fought in conference 
rooms, law offices, hacker redoubts and university dormitory rooms 
and in the hearts of millions of people surfing the Web.  

On one side are the big conglomerates that sell gadgets, music, 
toys, movies, text, cars and tools to the world. They're discovering 
that intellectual property laws covering trademarks, patents and 
copyrights can be potent tools to block criticism and keep 
consumers on a very short leash. All it takes is a SWAT team of well-
financed lawyers to stomp out opposition.  

On the other side are the folks who think that they actually own what 
they purchase. They may be car buffs who want to rebore their 
engine blocks, musicians who want to make copies of tunes to play 
in their cars or computer owners who want to fix nasty bugs. They 
all want to get at the guts of the technology because that's where the 
power is.  

In computer terminology, they want to tinker with the source code, 
the instructions for the computer that are understandable by a 
programmer. If you have access to the source, you can change the 
way the machine behaves. Computer programmers routinely adopt 
the voice of Obi-Wan Kenobi from "Star Wars" and intone, "Use the 
source, Luke."  

In the past, getting at the source of one thing or another was one of 
the hallmarks of the American can-do spirit. The movie studios 
routinely celebrated the gritty mechanic or lowly grunt soldier who 
saved the day with a wrench and an intuitive feel about how 
machines work. In the past, you were supposed to understand how 
machines did their jobs.  

Today, that kind of curiosity makes you a hacker. The big movie and 
music conglomerates want to portray the meddling kids who fiddle 
with DVD players as pirates who are just one click away from 
breaking into the Pentagon and launching nuclear missiles. To the 
conglomerates, poking around inside a gadget is just another form 
of theft.  

Lawyers for the Motion Picture Association of America and major 
movie studios, for instance, have recently been scouring the Net, 
looking for copies of a program for unlocking DVD movies called 
DeCSS. They aren't just suing people who use the program to sell 
bootleg copies -- you don't need DeCSS to do that. They want to 
stomp out the knowledge of how the program works, and they want 
to make sure that no one on the Net even links to the software.  

The people making the software available contend that they're not 
pirating movies but are simply arranging to play DVD movies on 
their Linux machines. They're using the source code in much the 
same way that Bo and Luke Duke welded a few enhancements to 
their car in the television show "The Dukes of Hazzard."  

This desire for control of intellectual property has been inspired in 
part by the software industry. Most people who buy a piece of 
software would be stunned to learn that they don't own software that 
cost $100 -- they've just licensed it.  

These licenses often include strict prohibitions on taking the 
software apart, or reverse-engineering it.  

If you want to customize the software or find a way to fix the bugs, 
you're out of luck. If the software runs slightly differently on your 
computer, you can't do any reverse-engineering to fix it. The 
companies adopt the rule: "Thou shall not know the source."  

One of the most infamous license restrictions came attached to 
Microsoft Agent, a product that helped programmers create little 
animated helpers on the screen. Buried in the click-wrapped license 
is a phrase that prohibits anyone working with the product from 
using "the Character Animation Data and Image Files to disparage 
Microsoft, its products or services." Luckily, I'm not using 
Microsoft's tools to write this.  

The scariest proposal from the World Intellectual Property 
Organization, an arm of the United Nations, aims to let big 
corporations protect facts in their databases. If all goes according to 
the group's plans, facts will pass out of the public domain when a 
corporation collects them. Once a company creates a database, it'll 
be able to stop others from copying the facts in the database without 
a license. It will own those facts.  

While that may protect big databases, it will also constrain little 
ones. Facts will go from being things owned by everyone to things 
that can be herded and owned by a single person or company.  

The good news is that at least in the software world, the battle 
against intellectual property constraints is going surprisingly well. 
In the last 15 years, the open-source software world has produced a 
collection of operating systems, applications and tools that is often 
better than most of the commercial systems out there.  

The next generation of the Macintosh OS, for instance, is based in 
large part on open-source operating systems like FreeBSD and 
NetBSD. Computers based on GNU software (like Unix, but free) 
Linux or FreeBSD are used to run more than half of the sites on the 
Web, and they're found in increasing numbers in offices around the 
world. Even new appliances like the TiVo digital video recorders are 
based on Linux.  

Open-source developers share all of their source code in the hope 
that others will use it, improve it and perhaps contribute 
enhancements to the rest of the world. The licenses that control the 
software make no attempt to stop people from sharing; in fact, they 
encourage it. There are no thefts of information, and there is no 
basis for any lawsuits like the one aimed at Napster. The authors 
want you to enjoy the software and pass it on.  

Many people are surprised that the world of open-source code 
exists at all. How do programmers eat if they don't sell their 
software? In most cases, they are paid for the work their software 
performs rather than for the software itself. Many are programmers 
who use the software for their projects. The Apache Web server, for 
instance, is produced by a team of people who design Web sites. 
They charge for the service and share the basic software. In other 
cases, charging for the software is more trouble than its worth.  

Many open-source teams achieved success before the influx of 
capital and hype. They relied on the freedom to cooperate, and 
that's often much more valuable. The forces of openness have made 
surprising strides in the last 10 years. The work of a bunch of 
hobbyists, teenagers and programmers working in their spare time 
now often eclipses the work of the biggest companies and their 
proprietary software. I.B.M. tried for years to dethrone Microsoft with 
its OS/ 2 operating system. Now the company is backing Linux.  

This success scares the dinosaur companies that rely upon 
intellectual property laws to protect their earnings. If they can't 
deliver the best solutions to the people themselves, they're 
reaching to the courts to ensure that no one will supplant them. The 
lawsuit against the DVD-playing program, for instance, will do more 
to stop new companies that want to play legitimately purchased DVD 
movies than pirates.  

The lawsuits against Napster may be aimed at piracy, but they could 
also stomp out small record labels and unsigned artists who want 
their music to float freely through the world of Napster. But the big 
labels want to shut down the entire service. If the current laws are 
not strong enough, they want new laws that will stop people from 
making some kinds of open technology. They imagine a world where 
technology will control and limit people instead of liberating them.  

Historically, new technologies that appear to undermine old 
business models have not been as dangerous as they seemed at 
first. The photocopier was supposed to destroy the book market, but 
now the bookstores are bigger than before. The VCR was supposed 
to destroy network television, but now we have more networks than 
before.  

Ever since Gutenberg replaced the monks in the scriptorium, the 
new technology for copying has made artists and the companies 
that employ them richer than ever. The notion of opening the source 
code to the world is just part of that tradition.  

Companies have tried to use legal mechanisms to keep their 
customers under tight rein, but that has never succeeded. If 
anything, innovation stagnated and the industries declined. Reverse-
engineering and the old greasy-knuckled can-do spirit are an 
important part of guaranteeing competition and protecting the 
consumer. Imagine if Ralph Nader or Rachel Carson had been 
hamstrung by the new rules on intellectual property? Many of the 
car companies now actively encourage the aftermarket, which 
provides both cool performance enchancers like superchargers and 
safety devices like infant seats.  

The open-source war is not going to be easy for society.  

The intellectual property laws do help protect creators and their 
innovations, and corporations instinctively grab as much power as 
they can get. But if the strength of these laws grows and the teams 
of lawyers that enforce them become more powerful, society will 
become much poorer.  

Copyright 2000 The New York Times Company  






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