October 1999 Column

October 1999 Column

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Bring forth the guillotine!

A row is currently raging in the free software community; it's about the ideological and political trappings of the Free Software Foundation, and specifically the GPL (GNU Public License). This is the rather interesting legal document under which the core of the free software universe -- including the Linux kernel -- is released.

Various people have been throwing accusations around ("Richard Stallman is a communist" is one particularly offensive example). Other people are saying that the GPL is restrictive and is an attack on non-open source software: if you take some GPL'd software and integrate it into something else, you are required to release the source code to the something else under the GPL as well, or risk being in breach of the licensing terms. (There's a reason for this requirement, by the way: it stops commercial outfits from getting a free lunch at the expense of whoever wrote the copylefted software. Other open source licenses, notably the BSD license, don't have the clause about releasing derived works -- as a result, the BSD TCP/IP stack turned up in Windows 95 without so much as a by-your-leave.)

However, holy wars aside, and despite the evident sincerity of the participants on both sides of the battle, I think they're all completely missing the point.

Years and years ago, Hans Christian Andersen penned a rather interesting story titled "The Emperor's New Clothes". In it, he tells of a remarkably vain emperor who is taken in by a couple of con men; they claim to be able to weave a cloth that is so fine it is invisible to anyone who is unfit for office or unforgivably stupid. Lo, the emperor commissions a suit of this magical cloth, and all his courtiers applaud his taste and style; he goes parading through the streets in it: and all his subjects, for reasons of their own, praise the cut of his birthday suit. It is left to a young child who doesn't know any better to exclaim "but he doesn't have anything on!"

The real argument at issue in the free software debate is not whether the GPL is overly restrictive, or the various semi-commercial alternatives like the QPL or MPL are more practical; it's fundamentally about the whole concept of copyrights and patents, as they have evolved in our society. The free software movement is like the little boy standing by the parade, pointing at the Emperor, and shouting "but he isn't wearing anything!" The emperor in question is, of course, the whole idea of intellectual property.

Let's go and take a peek through the wonderful cinemascope time-viewer, and replay some interesting bits of history,

Back before the slow-motion revolution that Johannes Gutenberg triggered by inventing the printing press, if you'd tried to explain the concept of copyright to someone who was educated and literate, they'd have treated you as if you were mad. Copying information was a highly labour-intensive operation: someone had to sit down and write the thing out, long-hand, complete with plenty of gold-leaf doodling in the margins to make it look prettier. A mass market for duplicated texts simply didn't -- and couldn't -- exist. Texts were valueless, insofar as the cost of the media far outweighed the value of their contents. Nobody made a living as an author, but there were lots of copyists.

Then there's the whole idea of the patent. Modern patents are basically a license to exploit some innovative design or technique without competition, for a limited period of time. The system was established to encourage inventors by enabling them to capitalize on their creativity. This explanation would be problematic for a mediaeval artisan, because the concept of a society based on a social contract and mutual observation of rights simply didn't exist.

Back in those days, patents -- or their forerunners -- existed, in the embryonic form of royal grants to an individual or guild to have exclusive ownership of some tool or mechanism for production. The guilds had their trade secrets, but the legal basis for using them was different from what we'd recognize today. Access was restricted to guild members, as was knowledge of their trade secrets. They were able to operate an effective information monopoly because the King had recognized them and agreed to hang anybody else who muscled in on their turf as long as they behaved themselves and paid taxes. All rights flowed from the king, who got them because, well, God said that was his job.

The point to note is that our current idea of copyright and patent laws -- laws governing intellectual property -- is a relatively recent one, and our ability to recognize intellectual property changes with time. (It's not like ownership of a loaf of bread, which was just as evident two thousand years ago as it is today.)

Now let's hit the fast-forward button a bit, and take the leap into the age of enlightenment -- post-printing-press, post-feudal, the great age of change.

The unauthorised duplication of texts had become a problem by the eighteenth century. Earlier solutions included licensing printing presses, but in a society that encourages free speech there's no obvious justification for that. By the time of the French revolution a situation had arisen where any aspiring novelist or musician who published a book would be vulnerable to unscrupulous printers copying their work and re-selling it, pocketing the profits that accrued. The mass literacy of the nineteenth and twentieth centuries created this as a new social problem, though we don't hear much of it today.

The immediate solution to the cheap-printing-press problem was the idea of copyright; that the author of a work had the power to grant a right of copying over it. This was a sensible and moderate solution within the context of the time, because printing presses were big and pirate printers could be tracked down and sued in civil court. As a secondary consideration, copyright was inheritable; the original reason for this was to protect the widows and children of authors for a few years after their death. This implied that copyright could be transferred; and so a separate category of work (work for hire, carried out for or purchased by a company, and owned by that company) came into existence.

A similar approach was taken to inventions; it was merely common sense that an inventor who came up with a genuinely new innovation should have the right to reap some profit from it before carpetbagging imitators duplicated the idea and swamped the market. The patent system was originally a sign of progress; by protecting inventions, it allowed inventors to publish details of them, rather than trying to maintain a blanket of secrecy around them. This in turn encouraged a climate of invention. Secrecy, as we know, is one of the enemies of progress.

And now let's hit that fast-forward button again and jump all the way to the present day.

Copying is now cheap. It doesn't involve scribbling on parchment with a cramped hand. It doesn't even involve a printing press, typecase shelves and hot lead and stacks of folios, or a different kind of press stamping out black plastic disks with spiral grooves embedded in them. Copying today is something you do on machines that cost as much in real terms as a pair of jeans would have cost in 1899. Copying lets you take a novel or an operating system or a blockbuster movie or a concert and turn it into a bit-stream that you can store on any media you like, media the cost of which is dropping exponentially. At current rates, you'll be able to save the entire textual content of the British Library on a single hard disk in ten years time. Another five or ten years and it'll be the equivalent of a zip disk -- so cheap you won't even notice. Ten years after that, it will be every movie and TV program ever archived; that's only a few million gigabytes, after all. The copying machines are cheap, fast, and out of control, and the clock will not be turned back.

The concept of copyright has been over-extended systematically, as a result of that one loop-hole that made it transferable. Today, the biggest holders of copyright are not authors and musicians, but large corporations: and they lobby continually for the incremental extension of their rights.

From protecting an individual author's rights to their work, copyright has been extended to protect these empires of intellectual property purchased from authors or contractors. This material is what a Marxist economist would call alienated labour -- the capital accumulation of information. By extending copyright over material for seventy years after the author's death or ninety years after a corporation created it, our legislators haven't done anything for the surviving families of the authors: but they have taken a large chunk of our common cultural heritage and handed it over to faceless corporations who can dole it out on a commercial basis. By extending copyright cover to musical recordings in the 1920's, legislators have created new rights: the music industry in turn is concerned with constructively extending their copyright in such a way that the consumers pay per performance, rather than paying a one-off purchase fee related to the recording medium. And so on.

As the information age progresses, the biggest businesses have a vested interest in lobbying for more draconian anti-copying laws. Copying is very cheap: it therefore holds the prospect of huge profit margins if you can charge for it. From media costs predominating (as was the case in the twelth century), we now see information costs predominating. A company may spend tens or hundreds of millions of pounds creating a soft product that you can duplicate on a couple of blank CD's. It shouldn't be much of a surprise to learn that the most ardent backer of FAST -- the anti-software piracy agency -- is Microsoft, and the other backers are all large companies that rely for their revenue streams on mass market software licenses.

The process of copyright extension is mediated by trans-national negotiation (mostly via the World Trade Organisation), and it is heavily influenced by business lobbying. This is understandable, if not agreeable. Most of us don't know where international treaties get drafted, or even worry about their direct impact on us. This is a mistake ...

As if the copyright extension problem isn't bad enough, our patent laws are also defective. Software patents run for the same 20-year period as normal patents: but in the febrile world of software, 20 years covers as many generations as 75 years in the automobile industry or 250 years in the construction industry. Meanwhile, patent agency staff who are manifestly untrained for the task grant patents on inappropriate inventions and things which simply are not inventions, such as the algorithms underlying public-key encryption. By granting patents on mathematical principles, they are hampering the growth of the industry rather than fostering it; it's as if they had allowed some company to patent the refractive index of glass and claim royalties from any other company producing materials that shared that physical characteristic. This used to be a predominantly American disease, but the EU is now considering allowing software patents. It's all part of the quiet process of harmonising the international trade regime, so that regulations are more or less the same everywhere. It sounds like a laudable idea -- until you realise that the regime will be normalised in the direction the loudest lobbyists want, not the direction that's in the best interest of individual citizens.

And so, we come to the free software movement: loudly declaring "but your whole idea of copyrights and patents and selling something that can be copied freely is a load of crap! Charge for support and services, make the software itself free, and you won't have to deal with these internal contradictions!"

At first hearing this may sound like addle-pated crackpotism. But nothing could be further from the truth: the whole point is that the free software movement is a Back To Basics call for the law of intellectual property. The idea of protecting intellectual property wasn't to turn us into a nation of have-nots, queueing at the iron gates of knowledge factories, begging for a hand-out from the owners: the idea was to encourage authors and inventors, for the benefit the common weal. The common weal today, in this age of cheap copying, is best served by abandoning copyright -- at least on soft goods -- and making everything available to everybody, all the time. The old stand-by of composers and musicians beckons: the patronage of the wealthy (corporations in this day and age, not aristocrats).

As it happens, we're increasingly seeing the more successful open source companies supporting labs that focus on developing free software that is not immediately of commercial importance: Red Hat have been doing it for some time, and now SuSE have joined in, for example. And there are other ways of supporting open source software authors. We're beginning to see a wave of IPOs (stock-market flotations) of open source companies; this, if nothing else, should demonstrate that it's possible to make money by giving things away with no strings attached and charging for side-lines like support.

This is perhaps the most explosively subversive idea in the information industry today. It's absolutely terrifying to the big corporations who want to sell us the same information, time and again. It's even more terrifying to the music industry, which faces the prospect of losing the lucrative recorded-music market -- in a free software regime, the only logical way of distributing recordings is as MP3's (or something similar), with musicians using their studio work as advertising to pack crowds into their live performance venues, rather than as a profit centre in its own right. It's harder to tell where the novelists will go, but a return to the Dickensian serial novel isn't beyond the bounds of possibility: time will tell.

The important point to take away from this end of the stick is that we're in the early stages of what promises to be the most fundamental upheaval in the intelectual property regime since the French Revolution. There are quite a few signs of an undirected backlash against the culture of cheap copying; in the USA, for example, a wildly anti-consumer federal law on product liability and shrinkwrap licensing is in the works, while various music industry bodies work to build a wall to keep the threatening MP3s out and anti-software-piracy organisations send intimidatory mail to companies they suspect of not buying enough software licenses. These gestures will only become more frantic as the writing on the wall gets clearer.

But the ancien regime is doomed, in the long run. Bring forth the guillotine ...

Dodging the five hundred kilo gorilla

There was a time not so long ago when it was said that the computing industry consisted of IBM and the seven dwarfs: Sperry, Digital, Data General, Dopey, Sleepy, and, um, a couple of others. In those days, men were real men, women were real women, and computer industry execs were real guys in suits. (So what's changed? -- Ed.) In those days, a CEO or manager -- I forget who -- coined a memorable metaphor: "IBM is like a rhinoceros. It's huge, armoured, ponderous, and extremely short-sighted. Most of the time it will ignore you, and that's okay. But if it notices you, it might charge. If it charges at you, you have to dodge; because if you don't move, you'll be flattened. Nobody can go head-to-head with the rhino. So learn to dodge."

Today, there's a new top predator in the dog-eat-dog jungle of mixed metaphors that is the computer industry. (A clue: it's name is synonymous with things small and flaccid.) This small and flaccid entity is the five hundred kilo silverback gorilla of software; it's smarter than that old rhino, it isn't short-sighted, and it's a whole lot more dangerous if it takes aim at you. Not only will dodging not work: it's smart enough to duck behind a tree and mug you on your way past.

(This metaphor would be a whole lot better if adult male silverback gorillas were bad tempered and habitually agressive; unfortunately for my purposes they aren't. But what the hell: my apologies to gorillas everywhere, and you can have your behaviour back in a couple of hundred words' time. Until then, you're King Kong, alright?)

Anyway. Small, agile tree-climbing furry things tend to draw the attention of the five hundred kilo gorilla, especially if they look as if they might grow into a gorilla themselves if neglected for long enough. This is a gorilla with a long history of jumping up and down on the graves of potential rivals. Digital Research learned about it the hard way with DR-DOS; Stac Electronics learned about it with the disk compression tools in DOS 6.x. Apple learned about it with Windows. Word Perfect caught it in the neck, and so did Borland. The path to the gorilla's nest on Skull Island is littered with the bones of a thousand unsuccessful challengers.

Some of the potential competitors are now showing signs of evolution through natural selection. The survivors simply Don't Do That any more; going head-to-head with King Kong is so obviously suicidal that they are looking for ways to avoid confrontation. The obvious way is to go somewhere the gorilla doesn't want to go. And right now, that someplace is Linux land.

There are signs of a stampede of Windows developers visible on the horizon. Take Photodex's Compupic, for example: a cool graphics browser that started life as a replacement for the Windows Explorer. Funnily enough, betas of this product are now circulating on Linux. It's kind of cool to have a multimedia-aware file manager that makes the default Windows file management tool look like a pile of ape-droppings: the real irony is that it wouldn't be available on Linux if not for the gorilla's own tactics. Marginal software companies can't compete on Skull Island, so they go where the gorilla isn't.

If you keep your eyes on the ground you can see more strange spoor. Borland -- they saw sense and changed their name back -- just advertised for a lead programmer to head the Delphi for Linux project. They're currently trying to gauge demand for their products, following in the footsteps of Metrowerks, who are more used to eking out a living on minority platforms.

Then there's Userland Software. I've raved about their product Frontier before, over the past few years. Frontier started out as a Mac-only application, before going cross-platform and acquiring a Windows port; they've now decided that a Linux port is the way to go. Frontier is a swiss army knife sort of application; imagine what Perl would be like if it had started out as Mac application. It's an outline processor and a scripting language and an XML document production system and an object database and an internet server, and a way of thinking about graphical user interface automation that is so cool it takes a while to get your head around it. In the first instance, it now works with Zope, so that you can publish Frontier content from a Windows or Mac client via a Zope server running on Linux. In the longer term, a native Linux Frontier port is coming.

These are examples of the small to medium developers who the gorilla has stomped on over the past five years. These are the companies who were fast enough not to become scraps of fur and bone lining King Kong's nest. They've begun to notice that there's a place the killer ape won't go, and they're migrating in that direction: and in the process they're going to enrich the ecology of Linux in unexpected ways.

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