The spread of the Linux operating system kernel has directed attention
at the free software movement. This paper shows why free software,
far from being a marginal participant in the commercial software
market, is the vital first step in the withering away of the intellectual
property system.
Contents
I. Software as Property: The Theoretical Paradox
II. Software as Property: The Practical Problem
III. Anarchism as a Mode of Production
IV. Their Lordships Die in the Dark?
Conclusion
I. Software as Property: The Theoretical Paradox
SOFTWARE: no other word so thoroughly connotes the
practical and social effects of the digital revolution. Originally,
the term was purely technical, and denoted the parts of a computer
system that, unlike "hardware," which was unchangeably manufactured
in system electronics, could be altered freely. The first software
amounted to the plug configuration of cables or switches on the outside
panels of an electronic device, but as soon as linguistic means of
altering computer behavior had been developed, "software" mostly denoted
the expressions in more or less human-readable language that both described
and controlled machine behavior [1].That was then
and this is now.
Technology based on the manipulation of digitally-encoded
information is now socially dominant in most aspects of human culture
in the "developed" societies [2].
The movement from analog to digital representation - in video, music,
printing, telecommunications, and even choreography, religious worship,
and sexual gratification - potentially turns all forms of human symbolic
activity into software, that is, modifiable instructions for describing
and controlling the behavior of machines. By a conceptual back-formation
characteristic of Western scientistic thinking, the division between
hardware and software is now being observed in the natural or social
world, and has become a new way to express the conflict between ideas
of determinism and free will, nature and nurture, or genes and culture.
Our "hardware," genetically wired, is our nature, and determines us.
Our nurture is "software," establishes our cultural programming, which
is our comparative freedom. And so on, for those reckless of blather
[3]. Thus "software" becomes a viable metaphor
for all symbolic activity, apparently divorced from the technical context
of the word's origin, despite the unease raised in the technically
competent when the term is thus bandied about, eliding the conceptual
significance of its derivation [4].
But the widespread
adoption of digital technology for use by those who do not understand
the principles of its operation, while it apparently licenses the broad
metaphoric employment of "software," does not in
fact permit us to ignore the computers that are now everywhere underneath
our social skin. The movement from analog to digital is more important
for the structure of social and legal relations than the more famous
if less certain movement from status to contract [5].
This is bad news for those legal thinkers who do not understand it,
which is why so much pretending to understand now goes so floridly
on. Potentially, however, our great transition is very good news for
those who can turn this new-found land into property for themselves.
Which is why the current "owners" of software so strongly support and
encourage the ignorance of everyone else. Unfortunately for them -
for reasons familiar to legal theorists who haven't yet understood
how to apply their traditional logic in this area - the trick won't
work. This paper explains why [6].
We need to begin
by considering the technical essence of the familiar devices that surround
us in the era of "cultural software." A CD player
is a good example. Its primary input is a bitstream read from an optical
storage disk. The bitstream describes music in terms of measurements,
taken 44,000 times per second, of frequency and amplitude in each of
two audio channels. The player's primary output is analog audio signals
[7]. Like everything else in the digital world,
music as seen by a CD player is mere numeric information; a particular
recording of Beethoven's Ninth Symphony recorded by Arturo Toscanini
and the NBC Symphony Orchestra and Chorale is (to drop a few insignificant
digits) 1276749873424, while Glenn Gould's peculiarly perverse last
recording of the Goldberg Variations is (similarly rather truncated)
767459083268.
Oddly enough, these two numbers are "copyrighted." This
means, supposedly, that you can't possess another copy of these numbers,
once fixed in any physical form, unless you have licensed them. And
you can't turn 767459083268 into 2347895697 for your friends (thus
correcting Gould's ridiculous judgment about tempi) without making
a "derivative work," for
which a license is necessary.
At the same time, a similar optical storage
disk contains another number, let us call it 7537489532. This one is
an algorithm for linear programming of large systems with multiple
constraints, useful for example if you want to make optimal use of
your rolling stock in running a freight railroad. This number (in the
U.S.) is "patented," which
means you cannot derive 7537489532 for yourself, or otherwise "practice
the art" of the patent with respect to solving linear programming problems
no matter how you came by the idea, including finding it out for yourself,
unless you have a license from the number's owner.
Then there's 9892454959483.
This one is the source code for Microsoft Word. In addition to being "copyrighted," this
one is a trade secret. That means if you take this number from Microsoft
and give it to anyone else you can be punished.
Lastly, there's 588832161316.
It doesn't do anything, it's just the square of 767354. As far as I
know, it isn't owned by anybody under any of these rubrics. Yet.
At
this point we must deal with our first objection from the learned.
It comes from a creature known as the IPdroid. The droid has a sophisticated
mind and a cultured life. It appreciates very much the elegant dinners
at academic and ministerial conferences about the TRIPs, not to mention
the privilege of frequent appearances on MSNBC. It wants you to know
that I'm committing the mistake of confusing the embodiment with the
intellectual property itself. It's not the number that's patented,
stupid, just the Kamarkar algorithm. The number can be copyrighted,
because copyright covers the expressive qualities of a particular tangible
embodiment of an idea (in which some functional properties may be mysteriously
merged, provided that they're not too merged), but not the algorithm.
Whereas the number isn't patentable, just the "teaching" of the number
with respect to making railroads run on time. And the number representing
the source code of Microsoft Word can be a trade secret, but if you
find it out for yourself (by performing arithmetic manipulation of
other numbers issued by Microsoft, for example, which is known as "reverse
engineering"), you're not going to be punished, at least if you live
in some parts of the United States.
This droid, like other droids, is
often right. The condition of being a droid is to know everything about
something and nothing about anything else. By its timely and urgent
intervention the droid has established that the current intellectual
property system contains many intricate and ingenious features. The
complexities combine to allow professors to be erudite, Congressmen
to get campaign contributions, lawyers to wear nice suits and tassel
loafers, and Murdoch to be rich. The complexities mostly evolved in
an age of industrial information distribution, when information was
inscribed in analog forms on physical objects that cost something significant
to make, move, and sell. When applied to digital information that moves
frictionlessly through the network and has zero marginal cost per copy,
everything still works, mostly, as long as you don't stop squinting.
But
that wasn't what I was arguing about. I wanted to point out something
else: that our world consists increasingly of nothing but large numbers
(also known as bitstreams), and that - for reasons having nothing to
do with emergent properties of the numbers themselves - the legal system
is presently committed to treating similar numbers radically differently.
No one can tell, simply by looking at a number that is 100 million
digits long, whether that number is subject to patent, copyright, or
trade secret protection, or indeed whether it is "owned" by anyone
at all. So the legal system we have - blessed as we are by its consequences
if we are copyright teachers, Congressmen, Gucci-gulchers or Big Rupert
himself - is compelled to treat indistinguishable things in unlike
ways.
Now, in my role as a legal historian concerned with the secular
(that is, very long term) development of legal thought, I claim that
legal regimes based on sharp but unpredictable distinctions among similar
objects are radically unstable. They fall apart over time because every
instance of the rules' application is an invitation to at least one
side to claim that instead of fitting in ideal category A the particular
object in dispute should be deemed to fit instead in category B, where
the rules will be more favorable to the party making the claim. This
game - about whether a typewriter should be deemed a musical instrument
for purposes of railway rate regulation, or whether a steam shovel
is a motor vehicle - is the frequent stuff of legal ingenuity. But
when the conventionally-approved legal categories require judges to
distinguish among the identical, the game is infinitely lengthy, infinitely
costly, and almost infinitely offensive to the unbiased bystander [8].
Thus
parties can spend all the money they want on all the legislators and
judges they can afford - which for the new "owners" of the digital
world is quite a few - but the rules they buy aren't going to work
in the end. Sooner or later, the paradigms are going to collapse. Of
course, if later means two generations from now, the distribution of
wealth and power sanctified in the meantime may not be reversible by
any course less drastic than a bellum servile of couch potatoes
against media magnates. So knowing that history isn't on Bill Gates'
side isn't enough. We are predicting the future in a very limited sense:
we know that the existing rules, which have yet the fervor of conventional
belief solidly enlisted behind them, are no longer meaningful. Parties
will use and abuse them freely until the mainstream of "respectable" conservative
opinion acknowledges their death, with uncertain results. But realistic
scholarship should already be turning its attention to the clear need
for new thoughtways.
When we reach this point in the argument, we find
ourselves contending with the other primary protagonist of educated
idiocy: the econodwarf. Like the IPdroid, the econodwarf is a species
of hedgehog,[9]
but where the droid is committed to logic over experience, the econodwarf
specializes in an energetic and well-focused but entirely erroneous
view of human nature. According to the econodwarf's vision, each human
being is an individual possessing "incentives," which can be retrospectively
unearthed by imagining the state of the bank account at various times.
So in this instance the econodwarf feels compelled to object that without
the rules I am lampooning, there would be no incentive to create the
things the rules treat as property: without the ability to exclude
others from music there would be no music, because no one could be
sure of getting paid for creating it.
Music is not really our subject;
the software I am considering at the moment is the old kind: computer
programs. But as he is determined to deal at least cursorily with the
subject, and because, as we have seen, it is no longer really possible
to distinguish computer programs from music performances, a word or
two should be said. At least we can have the satisfaction of indulging
in an argument ad pygmeam.
When the econodwarf grows rich, in my experience, he attends the opera.
But no matter how often he hears Don Giovanni it never occurs
to him that Mozart's fate should, on his logic, have entirely discouraged
Beethoven, or that we have The Magic Flute even though Mozart
knew very well he wouldn't be paid. In fact, The Magic Flute, St.
Matthew's Passion, and the motets of the wife-murderer Carlo Gesualdo
are all part of the centuries-long tradition of free software, in the
more general sense, which the econodwarf never quite acknowledges.
The dwarf's basic problem is that "incentives" is merely a metaphor,
and as a metaphor to describe human creative activity it's pretty crummy.
I have said this before,[10] but the better metaphor
arose on the day Michael Faraday first noticed what happened when he
wrapped a coil of wire around a magnet and spun the magnet. Current
flows in such a wire, but we don't ask what the incentive is for the
electrons to leave home. We say that the current results from an emergent
property of the system, which we call induction. The question we ask
is "what's the resistance of the wire?" So Moglen's Metaphorical Corollary
to Faraday's Law says that if you wrap the Internet around every person
on the planet and spin the planet, software flows in the network. It's
an emergent property of connected human minds that they create things
for one another's pleasure and to conquer their uneasy sense of being
too alone. The only question to ask is, what's the resistance of the
network? Moglen's Metaphorical Corollary to Ohm's Law states that the
resistance of the network is directly proportional to the field strength
of the "intellectual property" system. So the right answer to the econodwarf
is, resist the resistance.Of course, this is all very well in theory. "Resist the resistance" sounds
good, but we'd have a serious problem, theory notwithstanding, if the
dwarf were right and we found ourselves under-producing good software
because we didn't let people own it. But dwarves and droids are formalists
of different kinds, and the advantage of realism is that if you start
from the facts the facts are always on your side. It turns out that
treating software as property makes bad software.
II. Software as Property: The Practical Problem
In order to understand why turning software into property produces
bad software, we need an introduction to the history of the art. In
fact, we'd better start with the word "art" itself. The programming
of computers combines determinate reasoning with literary invention.
At first glance, to be sure, source code appears to be a non-literary
form of composition [11]. The primary desideratum
in a computer program is that it works, that is to say, performs according
to specifications formally describing its outputs in terms of its inputs.
At this level of generality, the functional content of programs is
all that can be seen.
But working computer programs exist as parts of computer systems,
which are interacting collections of hardware, software, and human
beings. The human components of a computer system include not only
the users, but also the (potentially different) persons who maintain
and improve the system. Source code not only communicates with the
computer that executes the program, through the intermediary of the
compiler that produces machine-language object code, but also with
other programmers.
The function of source code in relation to other human beings is not
widely grasped by non-programmers, who tend to think of computer programs
as incomprehensible. They would be surprised to learn that the bulk
of information contained in most programs is, from the point of view
of the compiler or other language processor, "comment," that is, non-functional
material. The comments, of course, are addressed to others who may
need to fix a problem or to alter or enhance the program's operation.
In most programming languages, far more space is spent in telling people
what the program does than in telling the computer how to do it.
The design of programming languages has always proceeded under the
dual requirements of complete specification for machine execution and
informative description for human readers. One might identify three
basic strategies in language design for approaching this dual purpose.
The first, pursued initially with respect to the design of languages
specific to particular hardware products and collectively known as "assemblers," essentially
separated the human- and machine-communication portions of the program.
Assembler instructions are very close relatives of machine-language
instructions: in general, one line of an assembler program corresponds
to one instruction in the native language of the machine. The programmer
controls machine operation at the most specific possible level, and
(if well-disciplined) engages in running commentary alongside the machine
instructions, pausing every few hundred instructions to create "block
comments," which provide a summary of the strategy of the program,
or document the major data structures the program manipulates.
A second approach, characteristically depicted by the language COBOL
(which stood for "Common Business-Oriented Language"), was to make
the program itself look like a set of natural language directions,
written in a crabbed but theoretically human-readable style. A line
of COBOL code might say, for example "MULTIPLY PRICE TIMES QUANTITY
GIVING EXPANSION." At first, when the Pentagon and industry experts
began the joint design of COBOL in the early 1960's, this seemed a
promising approach. COBOL programs appeared largely self-documenting,
allowing both the development of work teams able to collaborate on
the creation of large programs, and the training of programmers who,
while specialized workers, would not need to understand the machine
as intimately as assembler programs had to. But the level of generality
at which such programs documented themselves was wrongly selected.
A more formulaic and compressed expression of operational detail "expansion
= price x quantity," for example, was better suited even to business
and financial applications where the readers and writers of programs
were accustomed to mathematical expression, while the processes of
describing both data structures and the larger operational context
of the program were not rendered unnecessary by the wordiness of the
language in which the details of execution were specified.
Accordingly, language designers by the late 1960s began experimenting
with forms of expression in which the blending of operational details
and non-functional information necessary for modification or repair
was more subtle. Some designers chose the path of highly symbolic and
compressed languages, in which the programmer manipulated data abstractly,
so that "A x B" might mean the multiplication of two integers, two
complex numbers, two vast arrays, or any other data type capable of
some process called "multiplication," to be undertaken by the computer
on the basis of the context for the variables "A" and "B" at the moment
of execution [12]. Because this approach resulted
in extremely concise programs, it was thought, the problem of making
code comprehensible to those who would later seek to modify or repair
it was simplified. By hiding the technical detail of computer operation
and emphasizing the algorithm, languages could be devised that were
better than English or other natural languages for the expression of
stepwise processes. Commentary would be not only unnecessary but distracting,
just as the metaphors used to convey mathematical concepts in English
do more to confuse than to enlighten.
How We Created the Microbrain Mess
Thus the history of programming languages directly reflected the need
to find forms of human-machine communication that were also effective
in conveying complex ideas to human readers. "Expressivity" became
a property of programming languages, not because it facilitated computation,
but because it facilitated the collaborative creation and maintenance
of increasingly complex software systems.
At first impression, this seems to justify the application of traditional
copyright thinking to the resulting works. Though substantially involving "functional" elements,
computer programs contained "expressive" features of paramount importance.
Copyright doctrine recognized the merger of function and expression
as characteristic of many kinds of copyrighted works. "Source code," containing
both the machine instructions necessary for functional operation and
the expressive "commentary" intended for human readers, was an appropriate
candidate for copyright treatment.
True, so long as it is understood that the expressive component of
software was present solely in order to facilitate the making of "derivative
works." Were it not for the intention to facilitate alteration, the
expressive elements of programs would be entirely supererogatory, and
source code would be no more copyrightable than object code, the output
of the language processor, purged of all but the program's functional
characteristics.
The state of the computer industry throughout the 1960's and 1970's,
when the grundnorms of sophisticated computer programming were established,
concealed the tension implicit in this situation. In that period, hardware
was expensive. Computers were increasingly large and complex collections
of machines, and the business of designing and building such an array
of machines for general use was dominated, not to say monopolized,
by one firm. IBM gave away its software. To be sure, it owned the programs
its employees wrote, and it copyrighted the source code. But it also
distributed the programs - including the source code - to its customers
at no additional charge, and encouraged them to make and share improvements
or adaptations of the programs thus distributed. For a dominant hardware
manufacturer, this strategy made sense: better programs sold more computers,
which is where the profitability of the business rested.
Computers, in this period, tended to aggregate within particular organizations,
but not to communicate broadly with one another. The software needed
to operate was distributed not through a network, but on spools of
magnetic tape. This distribution system tended to centralize software
development, so that while IBM customers were free to make modifications
and improvements to programs, those modifications were shared in the
first instance with IBM, which then considered whether and in what
way to incorporate those changes in the centrally-developed and distributed
version of the software. Thus in two important senses the best computer
software in the world was free: it cost nothing to acquire, and the
terms on which it was furnished both allowed and encouraged experimentation,
change, and improvement [13]. That the software
in question was IBM's property under prevailing copyright law certainly
established some theoretical limits on users' ability to distribute
their improvements or adaptations to others, but in practice mainframe
software was cooperatively developed by the dominant hardware manufacturer
and its technically-sophisticated users, employing the manufacturer's
distribution resources to propagate the resulting improvements through
the user community. The right to exclude others, one of the most important "sticks
in the bundle" of property rights (in an image beloved of the United
States Supreme Court), was practically unimportant, or even undesirable,
at the heart of the software business [14].
After 1980, everything was different. The world of mainframe hardware
gave way within ten years to the world of the commodity PC. And, as
a contingency of the industry's development, the single most important
element of the software running on that commodity PC, the operating
system, became the sole significant product of a company that made
no hardware. High-quality basic software ceased to be part of the product-differentiation
strategy of hardware manufacturers. Instead, a firm with an overwhelming
share of the market, and with the near-monopolist's ordinary absence
of interest in fostering diversity, set the practices of the software
industry. In such a context, the right to exclude others from participation
in the product's formation became profoundly important. Microsoft's
power in the market rested entirely on its ownership of the Windows
source code.
To Microsoft, others' making of "derivative works," otherwise known
as repairs and improvements, threatened the central asset of the business.
Indeed, as subsequent judicial proceedings have tended to establish,
Microsoft's strategy as a business was to find innovative ideas elsewhere
in the software marketplace, buy them up and either suppress them or
incorporate them in its proprietary product. The maintenance of control
over the basic operation of computers manufactured, sold, possessed,
and used by others represented profound and profitable leverage over
the development of the culture [15]; the right
to exclude returned to center stage in the concept of software as property.
The result, so far as the quality of software was concerned, was disastrous.
The monopoly was a wealthy and powerful corporation that employed a
large number of programmers, but it could not possibly afford the number
of testers, designers, and developers required to produce flexible,
robust and technically-innovative software appropriate to the vast
array of conditions under which increasingly ubiquitous personal computers
operated. Its fundamental marketing strategy involved designing its
product for the least technically-sophisticated users, and using "fear,
uncertainty, and doubt" (known within Microsoft as "FUD") to drive
sophisticated users away from potential competitors, whose long-term
survivability in the face of Microsoft's market power was always in
question.
Without the constant interaction between users able to repair and
improve and the operating system's manufacturer, the inevitable deterioration
of quality could not be arrested. But because the personal computer
revolution expanded the number of users exponentially, almost everyone
who came in contact with the resulting systems had nothing against
which to compare them. Unaware of the standards of stability, reliability,
maintainability and effectiveness that had previously been established
in the mainframe world, users of personal computers could hardly be
expected to understand how badly, in relative terms, the monopoly's
software functioned. As the power and capacity of personal computers
expanded rapidly, the defects of the software were rendered less obvious
amidst the general increase of productivity. Ordinary users, more than
half afraid of the technology they almost completely did not understand,
actually welcomed the defectiveness of the software. In an economy
undergoing mysterious transformations, with the concomitant destabilization
of millions of careers, it was tranquilizing, in a perverse way, that
no personal computer seemed to be able to run for more than a few consecutive
hours without crashing. Although it was frustrating to lose work in
progress each time an unnecessary failure occurred, the evident fallibility
of computers was intrinsically reassuring [16].
None of this was necessary. The low quality of personal computer software
could have been reversed by including users directly in the inherently
evolutionary process of software design and implementation. A Lamarckian
mode, in which improvements could be made anywhere, by anyone, and
inherited by everyone else, would have wiped out the deficit, restoring
to the world of the PC the stability and reliability of the software
made in the quasi-propertarian environment of the mainframe era. But
the Microsoft business model precluded Lamarckian inheritance of software
improvements. Copyright doctrine, in general and as it applies to software
in particular, biases the world towards creationism; in this instance,
the problem is that BillG the Creator was far from infallible, and
in fact he wasn't even trying.
To make the irony more severe, the growth of the network rendered
the non-propertarian alternative even more practical. What scholarly
and popular writing alike denominate as a thing ("the Internet") is
actually the name of a social condition: the fact that everyone in
the network society is connected directly, without intermediation,
to everyone else [17]. The global interconnection
of networks eliminated the bottleneck that had required a centralized
software manufacturer to rationalize and distribute the outcome of
individual innovation in the era of the mainframe.
And so, in one of history's little ironies, the global triumph of
bad software in the age of the PC was reversed by a surprising combination
of forces: the social transformation initiated by the network, a long-discarded
European theory of political economy, and a small band of programmers
throughout the world mobilized by a single simple idea.
Software Wants to Be Free; or, How We Stopped Worrying and Learned
to Love the Bomb
Long before the network of networks was a practical reality, even
before it was an aspiration, there was a desire for computers to operate
on the basis of software freely available to everyone. This began as
a reaction against propertarian software in the mainframe era, and
requires another brief historical digression.
Even though IBM was the largest seller of general purpose computers
in the mainframe era, it was not the largest designer and builder of
such hardware. The telephone monopoly, American Telephone & Telegraph,
was in fact larger than IBM, but it consumed its products internally.
And at the famous Bell Labs research arm of the telephone monopoly,
in the late 1960's, the developments in computer languages previously
described gave birth to an operating system called Unix.
The idea of Unix was to create a single, scalable operating system
to exist on all the computers, from small to large, that the telephone
monopoly made for itself. To achieve this goal meant writing an operating
system not in machine language, nor in an assembler whose linguistic
form was integral to a particular hardware design, but in a more expressive
and generalized language. The one chosen was also a Bell Labs invention,
called "C" [18]. The C language became common,
even dominant, for many kinds of programming tasks, and by the late
1970's the Unix operating system written in that language had been
transferred (or "ported," in professional jargon) to computers made
by many manufacturers and of many designs.
AT&T distributed Unix widely, and because of the very design of
the operating system, it had to make that distribution in C source
code. But AT&T retained ownership of the source code and compelled
users to purchase licenses that prohibited redistribution and the making
of derivative works. Large computing centers, whether industrial or
academic, could afford to purchase such licenses, but individuals could
not, while the license restrictions prevented the community of programmers
who used Unix from improving it in an evolutionary rather than episodic
fashion. And as programmers throughout the world began to aspire to
and even expect a personal computer revolution, the "unfree" status
of Unix became a source of concern.
Between 1981 and 1984, one man envisioned a crusade to change the
situation. Richard M. Stallman, then an employee of MIT's Artificial
Intelligence Laboratory, conceived the project of independent, collaborative
redesign and implementation of an operating system that would be true
free software. In Stallman's phrase, free software would be a matter
of freedom, not of price. Anyone could freely modify and redistribute
such software, or sell it, subject only to the restriction that he
not try to reduce the rights of others to whom he passed it along.
In this way free software could become a self-organizing project, in
which no innovation would be lost through proprietary exercises of
rights. The system, Stallman decided, would be called GNU, which stood
(in an initial example of a taste for recursive acronyms that has characterized
free software ever since), for "GNU's Not Unix." Despite misgivings
about the fundamental design of Unix, as well as its terms of distribution,
GNU was intended to benefit from the wide if unfree source distribution
of Unix. Stallman began Project GNU by writing components of the eventual
system that were also designed to work without modification on existing
Unix systems. Development of the GNU tools could thus proceed directly
in the environment of university and other advanced computing centers
around the world.
The scale of such a project was immense. Somehow, volunteer programmers
had to be found, organized, and set to work building all the tools
that would be necessary for the ultimate construction. Stallman himself
was the primary author of several fundamental tools. Others were contributed
by small or large teams of programmers elsewhere, and assigned to Stallman's
project or distributed directly. A few locations around the developing
network became archives for the source code of these GNU components,
and throughout the 1980's the GNU tools gained recognition and acceptance
by Unix users throughout the world. The stability, reliability, and
maintainability of the GNU tools became a by-word, while Stallman's
profound abilities as a designer continued to outpace, and provide
goals for, the evolving process. The award to Stallman of a MacArthur
Fellowship in 1990 was an appropriate recognition of his conceptual
and technical innovations and their social consequences.
Project GNU, and the Free Software Foundation to which it gave birth
in 1985, were not the only source of free software ideas. Several forms
of copyright license designed to foster free or partially free software
began to develop in the academic community, mostly around the Unix
environment. The University of California at Berkeley began the design
and implementation of another version of Unix for free distribution
in the academic community. BSD Unix, as it came to be known, also treated
AT&T's Unix as a design standard. The code was broadly released
and constituted a reservoir of tools and techniques, but its license
terms limited the range of its application, while the elimination of
hardware-specific proprietary code from the distribution meant that
no one could actually build a working operating system for any particular
computer from BSD. Other university-based work also eventuated in quasi-free
software; the graphical user interface (or GUI) for Unix systems called
X Windows, for example, was created at MIT and distributed with source
code on terms permitting free modification. And in 1989-1990, an undergraduate
computer science student at the University of Helsinki, Linus Torvalds,
began the project that completed the circuit and fully energized the
free software vision.
What Torvalds did was to begin adapting a computer science teaching
tool for real life use. Andrew Tannenbaum's MINIX kernel [19],
was a staple of Operating Systems courses, providing an example of
basic solutions to basic problems. Slowly, and at first without recognizing
the intention, Linus began turning the MINIX kernel into an actual
kernel for Unix on the Intel x86 processors, the engines that run the
world's commodity PCs. As Linus began developing this kernel, which
he named Linux, he realized that the best way to make his project work
would be to adjust his design decisions so that the existing GNU components
would be compatible with his kernel.
The result of Torvalds' work was the release on the net in 1991 of
a sketchy working model of a free software kernel for a Unix-like operating
system for PCs, fully compatible with and designed convergently with
the large and high-quality suite of system components created by Stallman's
Project GNU and distributed by the Free Software Foundation. Because
Torvalds chose to release the Linux kernel under the Free Software
Foundation's General Public License, of which more below, the hundreds
and eventually thousands of programmers around the world who chose
to contribute their effort towards the further development of the kernel
could be sure that their efforts would result in permanently free software
that no one could turn into a proprietary product. Everyone knew that
everyone else would be able to test, improve, and redistribute their
improvements. Torvalds accepted contributions freely, and with a genially
effective style maintained overall direction without dampening enthusiasm.
The development of the Linux kernel proved that the Internet made it
possible to aggregate collections of programmers far larger than any
commercial manufacturer could afford, joined almost non-hierarchically
in a development project ultimately involving more than one million
lines of computer code - a scale of collaboration among geographically
dispersed unpaid volunteers previously unimaginable in human history
[20].
By 1994, Linux had reached version 1.0, representing a usable production
kernel. Level 2.0 was reached in 1996, and by 1998, with the kernel
at 2.2.0 and available not only for x86 machines but for a variety
of other machine architectures, GNU/Linux - the combination of the
Linux kernel and the much larger body of Project GNU components - and
Windows NT were the only two operating systems in the world gaining
market share. A Microsoft internal assessment of the situation leaked
in October 1998 and subsequently acknowledged by the company as genuine
concluded that "Linux represents a best-of-breed UNIX, that is trusted
in mission critical applications, and - due to it's [sic] open source
code - has a long term credibility which exceeds many other competitive
OS's." [21] GNU/Linux systems are now used throughout
the world, operating everything from Web servers at major electronic
commerce sites to "ad-hoc supercomputer" clusters to the network infrastructure
of money-center banks. GNU/Linux is found on the space shuttle, and
running behind-the-scenes computers at (yes) Microsoft. Industry evaluations
of the comparative reliability of Unix systems have repeatedly shown
that Linux is far and away the most stable and reliable Unix kernel,
with a reliability exceeded only by the GNU tools themselves. GNU/Linux
not only out-performs commercial proprietary Unix versions for PCs
in benchmarks, but is renowned for its ability to run, undisturbed
and uncomplaining, for months on end in high-volume high-stress environments
without crashing.
Other components of the free software movement have been equally successful.
Apache, far and away the world's leading Web server program, is free
software, as is Perl, the programming language which is the lingua
franca for the programmers who build sophisticated Web sites. Netscape
Communications now distributes its Netscape Communicator 5.0 browser
as free software, under a close variant of the Free Software Foundation's
General Public License. Major PC manufacturers, including IBM, have
announced plans or are already distributing GNU/Linux as a customer
option on their top-of-the-line PCs intended for use as Web- and file
servers. Samba, a program that allows GNU/Linux computers to act as
Windows NT file servers, is used worldwide as an alternative to Windows
NT Server, and provides effective low-end competition to Microsoft
in its own home market. By the standards of software quality that have
been recognized in the industry for decades - and whose continuing
relevance will be clear to you the next time your Windows PC crashes
- the news at century's end is unambiguous. The world's most profitable
and powerful corporation comes in a distant second, having excluded
all but the real victor from the race. Propertarianism joined to capitalist
vigor destroyed meaningful commercial competition, but when it came
to making good software, anarchism won.
III. Anarchism as a Mode of Production
It's a pretty story, and if only the IPdroid and the econodwarf hadn't
been blinded by theory, they'd have seen it coming. But though some
of us had been working for it and predicting it for years, the theoretical
consequences are so subversive for the thoughtways that maintain our
dwarves and droids in comfort that they can hardly be blamed for refusing
to see. The facts proved that something was wrong with the "incentives" metaphor
that underprops conventional intellectual property reasoning [22].
But they did more. They provided an initial glimpse into the future
of human creativity in a world of global interconnection, and it's
not a world made for dwarves and droids.
My argument, before we paused for refreshment in the real world, can
be summarized this way: Software - whether executable programs, music,
visual art, liturgy, weaponry, or what have you - consists of bitstreams,
which although essentially indistinguishable are treated by a confusing
multiplicity of legal categories. This multiplicity is unstable in
the long term for reasons integral to the legal process. The unstable
diversity of rules is caused by the need to distinguish among kinds
of property interests in bitstreams. This need is primarily felt by
those who stand to profit from the socially acceptable forms of monopoly
created by treating ideas as property. Those of us who are worried
about the social inequity and cultural hegemony created by this intellectually
unsatisfying and morally repugnant regime are shouted down. Those doing
the shouting, the dwarves and the droids, believe that these property
rules are necessary not from any overt yearning for life in Murdochworld
- though a little luxurious co-optation is always welcome - but because
the metaphor of incentives, which they take to be not just an image
but an argument, proves that these rules - despite their lamentable
consequences - are necessary if we are to make good software. The only
way to continue to believe this is to ignore the facts. At the center
of the digital revolution, with the executable bitstreams that make
everything else possible, propertarian regimes not only do not make
things better, they can make things radically worse. Property concepts,
whatever else may be wrong with them, do not enable and have in fact
retarded progress.
But what is this mysterious alternative? Free software exists, but
what are its mechanisms, and how does it generalize towards a non-propertarian
theory of the digital society?
The Legal Theory of Free Software
There is a myth, like most myths partially founded on reality, that
computer programmers are all libertarians. Right-wing ones are capitalists,
cleave to their stock options, and disdain taxes, unions, and civil
rights laws; left-wing ones hate the market and all government, believe
in strong encryption no matter how much nuclear terrorism it may cause,[23]
and dislike Bill Gates because he's rich. There is doubtless a foundation
for this belief. But the most significant difference between political
thought inside the digirati and outside it is that in the network society,
anarchism (or more properly, anti-possessive individualism) is a viable
political philosophy.
The center of the free software movement's success, and the greatest
achievement of Richard Stallman, is not a piece of computer code. The
success of free software, including the overwhelming success of GNU/Linux,
results from the ability to harness extraordinary quantities of high-quality
effort for projects of immense size and profound complexity. And this
ability in turn results from the legal context in which the labor is
mobilized. As a visionary designer Richard Stallman created more than
Emacs, GDB, or GNU. He created the General Public License.
The GPL,[24] also known as the copyleft, uses
copyright, to paraphrase Toby Milsom, to counterfeit the phenomena
of anarchism. As the license preamble expresses it:
When we speak of free software, we are referring to freedom,
not price. Our General Public Licenses are designed to make sure that
you have the freedom to distribute copies of free software (and charge
for this service if you wish), that you receive source code or can
get it if you want it, that you can change the software or use pieces
of it in new free programs; and that you know you can do these things.
To protect your rights, we need to make restrictions that
forbid anyone to deny you these rights or to ask you to surrender the
rights. These restrictions translate to certain responsibilities for
you if you distribute copies of the software, or if you modify it.
For example, if you distribute copies of such a program,
whether gratis or for a fee, you must give the recipients all the rights
that you have. You must make sure that they, too, receive or can get
the source code. And you must show them these terms so they know their
rights.
Many variants of this basic free software idea have been expressed
in licenses of various kinds, as I have already indicated. The GPL
is different from the other ways of expressing these values in one
crucial respect. Section 2 of the license provides in pertinent part:
You may modify your copy or copies of the Program or any
portion of it, thus forming a work based on the Program, and copy and
distribute such modifications or work ..., provided that you also meet
all of these conditions:
...
b) You must cause any work that you distribute or publish,
that in whole or in part contains or is derived from the Program or
any part thereof, to be licensed as a whole at no charge to all third
parties under the terms of this License.
Section 2(b) of the GPL is sometimes called "restrictive," but its
intention is liberating. It creates a commons, to which anyone may
add but from which no one may subtract. Because of §2(b), each
contributor to a GPL'd project is assured that she, and all other users,
will be able to run, modify and redistribute the program indefinitely,
that source code will always be available, and that, unlike commercial
software, its longevity cannot be limited by the contingencies of the
marketplace or the decisions of future developers. This "inheritance" of
the GPL has sometimes been criticized as an example of the free software
movement's anti-commercial bias. Nothing could be further from the
truth. The effect of §2(b) is to make commercial distributors
of free software better competitors against proprietary software businesses.
For confirmation of this point, one can do no better than to ask the
proprietary competitors. As the author of the Microsoft "Halloween" memorandum,
Vinod Vallopillil, put it:
The GPL and its aversion to code forking reassures customers
that they aren't riding an evolutionary `dead-end' by subscribing to
a particular commercial version of Linux.
The "evolutionary dead-end" is the core of the software FUD
argument [25].
Translated out of Microspeak, this means that the strategy by which
the dominant proprietary manufacturer drives customers away from competitors
- by sowing fear, uncertainty and doubt about other software's long-term
viability - is ineffective with respect to GPL'd programs. Users of
GPL'd code, including those who purchase software and systems from
a commercial reseller, know that future improvements and repairs will
be accessible from the commons, and need not fear either the disappearance
of their supplier or that someone will use a particularly attractive
improvement or a desperately necessary repair as leverage for "taking
the program private."This use of intellectual property rules to create a commons in cyberspace
is the central institutional structure enabling the anarchist triumph.
Ensuring free access and enabling modification at each stage in the
process means that the evolution of software occurs in the fast Lamarckian
mode: each favorable acquired characteristic of others' work can be
directly inherited. Hence the speed with which the Linux kernel, for
example, outgrew all of its proprietary predecessors. Because defection
is impossible, free riders are welcome, which resolves one of the central
puzzles of collective action in a propertarian social system.Non-propertarian production is also directly responsible for the famous
stability and reliability of free software, which arises from what
Eric Raymond calls "Linus' law": With enough eyeballs, all bugs are
shallow. In practical terms, access to source code means that if I
have a problem I can fix it. Because I can fix it, I almost never have
to, because someone else has almost always seen it and fixed it first.For the free software community, commitment to anarchist production
may be a moral imperative; as Richard Stallman wrote, it's about freedom,
not about price. Or it may be a matter of utility, seeking to produce
better software than propertarian modes of work will allow. From the
droid point of view, the copyleft represents the perversion of theory,
but better than any other proposal over the past decades it resolves
the problems of applying copyright to the inextricably merged functional
and expressive features of computer programs. That it produces better
software than the alternative does not imply that traditional copyright
principles should now be prohibited to those who want to own and market
inferior software products, or (more charitably) whose products are
too narrow in appeal for communal production. But our story should
serve as a warning to droids: The world of the future will bear little
relation to the world of the past. The rules are now being bent in
two directions. The corporate owners of "cultural icons" and other
assets who seek ever-longer terms for corporate authors, converting
the "limited Time" of Article I, §8 into a freehold have naturally
been whistling music to the android ear [26].
After all, who bought the droids their concert tickets? But as the
propertarian position seeks to embed itself ever more strongly, in
a conception of copyright liberated from the minor annoyances of limited
terms and fair use, at the very center of our "cultural software" system,
the anarchist counter-strike has begun. Worse is yet to befall the
droids, as we shall see. But first, we must pay our final devoirs to
the dwarves.
Because It's There: Faraday's Magnet and Human Creativity
After all, they deserve an answer. Why do people make free software
if they don't get to profit? Two answers have usually been given. One
is half-right and the other is wrong, but both are insufficiently simple.The wrong answer is embedded in numerous references to "the hacker
gift-exchange culture." This use of ethnographic jargon wandered into
the field some years ago and became rapidly, if misleadingly, ubiquitous.
It reminds us only that the economeretricians have so corrupted our
thought processes that any form of non-market economic behavior seems
equal to every other kind. But gift-exchange, like market barter, is
a propertarian institution. Reciprocity is central to these symbolic
enactments of mutual dependence, and if either the yams or the fish
are short-weighted, trouble results. Free software, at the risk of
repetition, is a commons: no reciprocity ritual is enacted there. A
few people give away code that others sell, use, change, or borrow
wholesale to lift out parts for something else. Notwithstanding the
very large number of people (tens of thousands, at most) who have contributed
to GNU/Linux, this is orders of magnitude less than the number of users
who make no contribution whatever [27].A part of the right answer is suggested by the claim that free software
is made by those who seek reputational compensation for their activity.
Famous Linux hackers, the theory is, are known all over the planet
as programming deities. From this they derive either enhanced self-esteem
or indirect material advancement [28]. But the
programming deities, much as they have contributed to free software,
have not done the bulk of the work. Reputations, as Linus Torvalds
himself has often pointed out, are made by willingly acknowledging
that it was all done by someone else. And, as many observers have noted,
the free software movement has also produced superlative documentation.
Documentation-writing is not what hackers do to attain cool, and much
of the documentation has been written by people who didn't write the
code. Nor must we limit the indirect material advantages of authorship
to increases in reputational capital. Most free software authors I
know have day jobs in the technology industries, and the skills they
hone in the more creative work they do outside the market no doubt
sometimes measurably enhance their value within it. And as the free
software products gained critical mass and became the basis of a whole
new set of business models built around commercial distribution of
that which people can also get for nothing, an increasing number of
people are specifically employed to write free software. But in order
to be employable in the field, they must already have established themselves
there. Plainly, then, this motive is present, but it isn't the whole
explanation.Indeed, the rest of the answer is just too simple to have received
its due. The best way to understand is to follow the brief and otherwise
unsung career of an initially-grudging free software author. Microsoft's
Vinod Vallopillil, in the course of writing the competitive analysis
of Linux that was leaked as the second of the famous "Halloween memoranda," bought
and installed a Linux system on one of his office computers. He had
trouble because the (commercial) Linux distribution he installed did
not contain a daemon to handle the DHCP protocol for assignment of
dynamic IP addresses. The result was important enough for us to risk
another prolonged exposure to the Microsoft Writing Style:
A small number of Web sites and FAQs later, I found an FTP
site with a Linux DHCP client. The DHCP client was developed by an
engineer employed by Fore Systems (as evidenced by his e-mail address;
I believe, however, that it was developed in his own free time). A
second set of documentation/manuals was written for the DHCP client
by a hacker in Hungary which provided relatively simple instructions
on how to install/load the client.
I downloaded & uncompressed the client and typed two
simple commands:
Make - compiles the client binaries
Make Install -installed the binaries as a Linux Daemon
Typing "DHCPCD" (for DHCP Client Daemon) on the command line
triggered the DHCP discovery process and voila, I had IP networking
running.
Since I had just downloaded the DHCP client code, on an impulse
I played around a bit. Although the client wasn't as extensible as
the DHCP client we are shipping in NT5 (for example, it won't query
for arbitrary options & store results), it was obvious how I could
write the additional code to implement this functionality. The full
client consisted of about 2,600 lines of code.
One example of esoteric, extended functionality that was
clearly patched in by a third party was a set of routines to that would
pad the DHCP request with host-specific strings required by Cable Modem
/ ADSL sites.
A few other steps were required to configure the DHCP client
to auto-start and auto-configure my Ethernet interface on boot but
these were documented in the client code and in the DHCP documentation
from the Hungarian developer.
I'm a poorly skilled UNIX programmer but it was immediately
obvious to me how to incrementally extend the DHCP client code (the
feeling was exhilarating and addictive).
Additionally, due directly to GPL + having the full development
environment in front of me, I was in a position where I could write
up my changes and e-mail them out within a couple of hours (in contrast
to how things like this would get done in NT). Engaging in that process
would have prepared me for a larger, more ambitious Linux project in
the future [29].
"The feeling was exhilarating and addictive." Stop the presses: Microsoft
experimentally verifies Moglen's Metaphorical Corollary to Faraday's
Law. Wrap the Internet around every brain on the planet and spin the
planet. Software flows in the wires. It's an emergent property of human
minds to create. "Due directly to the GPL," as Vallopillil rightly
pointed out, free software made available to him an exhilarating increase
in his own creativity, of a kind not achievable in his day job working
for the Greatest Programming Company on Earth. If only he had e-mailed
that first addictive fix, who knows where he'd be now?
So, in the end, my dwarvish friends, it's just a human thing. Rather
like why Figaro sings, why Mozart wrote the music for him to sing to,
and why we all make up new words: Because we can. Homo ludens, meet
Homo faber. The social condition of global interconnection that we
call the Internet makes it possible for all of us to be creative in
new and previously undreamed-of ways. Unless we allow "ownership" to
interfere. Repeat after me, ye dwarves and men: Resist the resistance!
IV. Their Lordships Die in the Dark?
For the IPdroid, fresh off the plane from a week at Bellagio paid
for by Dreamworks SKG, it's enough to cause indigestion.
Unlock the possibilities of human creativity by connecting everyone
to everyone else? Get the ownership system out of the way so that we
can all add our voices to the choir, even if that means pasting our
singing on top of the Mormon Tabernacle and sending the output to a
friend? No one sitting slack-jawed in front of a televised mixture
of violence and imminent copulation carefully devised to heighten the
young male eyeball's interest in a beer commercial? What will become
of civilization? Or at least of copyright teachers?
But perhaps this is premature. I've only been talking about software.
Real software, the old kind, that runs computers. Not like the software
that runs DVD players, or the kind made by the Grateful Dead. "Oh yes,
the Grateful Dead. Something strange about them, wasn't there? Didn't
prohibit recording at their concerts. Didn't mind if their fans rather
riled the recording industry. Seem to have done all right, though,
you gotta admit. Senator Patrick Leahy, isn't he a former Deadhead?
I wonder if he'll vote to extend corporate authorship terms to 125
years, so that Disney doesn't lose The Mouse in 2006. And those DVD
players - they're computers, aren't they?"
In the digital society, it's all connected. We can't depend for the
long run on distinguishing one bitstream from another in order to figure
out which rules apply. What happened to software is already happening
to music. Their recording industry lordships are now scrambling wildly
to retain control over distribution, as both musicians and listeners
realize that the middlepeople are no longer necessary. The Great Potemkin
Village of 1999, the so-called Secure Digital Music Initiative, will
have collapsed long before the first Internet President gets inaugurated,
for simple technical reasons as obvious to those who know as the ones
that dictated the triumph of free software [30].
The anarchist revolution in music is different from the one in software tout
court, but here too - as any teenager with an MP3 collection of
self-released music from unsigned artists can tell you - theory has
been killed off by the facts. Whether you are Mick Jagger, or a great
national artist from the third world looking for a global audience,
or a garret-dweller reinventing music, the recording industry will
soon have nothing to offer you that you can't get better for free.
And music doesn't sound worse when distributed for free, pay what you
want directly to the artist, and don't pay anything if you don't want
to. Give it to your friends; they might like it.
What happened to music is also happening to news. The wire services,
as any U.S. law student learns even before taking the near-obligatory
course in Copyright for Droids, have a protectible property interest
in their expression of the news, even if not in the facts the news
reports [31]. So why are they now giving all
their output away? Because in the world of the Net, most news is commodity
news. And the original advantage of the news gatherers, that they were
internally connected in ways others were not when communications were
expensive, is gone. Now what matters is collecting eyeballs to deliver
to advertisers. It isn't the wire services that have the advantage
in covering Kosovo, that's for sure. Much less those paragons of "intellectual" property,
their television lordships. They, with their overpaid pretty people
and their massive technical infrastructure, are about the only organizations
in the world that can't afford to be everywhere all the time. And then
they have to limit themselves to ninety seconds a story, or the eyeball
hunters will go somewhere else. So who makes better news, the propertarians
or the anarchists? We shall soon see.
Oscar Wilde says somewhere that the problem with socialism is that
it takes up too many evenings. The problems with anarchism as a social
system are also about transaction costs. But the digital revolution
alters two aspects of political economy that have been otherwise invariant
throughout human history. All software has zero marginal cost in the
world of the Net, while the costs of social coordination have been
so far reduced as to permit the rapid formation and dissolution of
large-scale and highly diverse social groupings entirely without geographic
limitation [32]. Such fundamental change in the
material circumstances of life necessarily produces equally fundamental
changes in culture. Think not? Tell it to the Iroquois. And of course
such profound shifts in culture are threats to existing power relations.
Think not? Ask the Chinese Communist Party. Or wait 25 years and see
if you can find them for purposes of making the inquiry.
In this context, the obsolescence of the IPdroid is neither unforseeable
nor tragic. Indeed it may find itself clanking off into the desert,
still lucidly explaining to an imaginary room the profitably complicated
rules for a world that no longer exists. But at least it will have
familiar company, recognizable from all those glittering parties in
Davos, Hollywood, and Brussels. Our Media Lords are now at handigrips
with fate, however much they may feel that the Force is with them.
The rules about bitstreams are now of dubious utility for maintaining
power by co-opting human creativity. Seen clearly in the light of fact,
these Emperors have even fewer clothes than the models they use to
grab our eyeballs. Unless supported by user-disabling technology, a
culture of pervasive surveillance that permits every reader of every "property" to
be logged and charged, and a smokescreen of droid-breath assuring each
and every young person that human creativity would vanish without the
benevolent aristocracy of BillG the Creator, Lord Murdoch of Everywhere,
the Spielmeister and the Lord High Mouse, their reign is nearly done.
But what's at stake is the control of the scarcest resource of all:
our attention. Conscripting that makes all the money in the world in
the digital economy, and the current lords of the earth will fight
for it. Leagued against them are only the anarchists: nobodies, hippies,
hobbyists, lovers, and artists. The resulting unequal contest is the
great political and legal issue of our time. Aristocracy looks hard
to beat, but that's how it looked in 1788 and 1913 too. It is, as Chou
En-Lai said about the meaning of the French Revolution, too soon to
tell.
Acknowledgments
This paper was prepared for delivery at the Buchmann International
Conference on Law, Technology and Information, at Tel Aviv University,
May 1999; my thanks to the organizers for their kind invitation. I
owe much as always to Pamela Karlan for her insight and encouragement.
I especially wish to thank the programmers throughout the world who
made free software possible.
Notes
1. The distinction was only
approximate in its original context. By the late 1960's certain portions
of the basic operation of hardware were controlled by programs digitally
encoded in the electronics of computer equipment, not subject to
change after the units left the factory. Such symbolic but unmodifiable
components were known in the trade as "microcode," but it became conventional
to refer to them as "firmware." Softness, the term "firmware" demonstrated,
referred primarily to users' ability to alter symbols determining machine
behavior. As the digital revolution has resulted in the widespread
use of computers by technical incompetents, most traditional software
- application programs, operating systems, numerical control instructions,
and so fort - is, for most of its users, firmware. It may be symbolic
rather than electronic in its construction, but they couldn't change
it even if they wanted to, which they often - impotently and resentfully
- do. This "firming of software" is a primary condition of the propertarian
approach to the legal organization of digital society, which is the
subject of this paper.2. Within the present generation,
the very conception of social "development" is shifting away from possession of heavy industry
based on the internal-combustion engine to "post-industry" based on
digital communications and the related "knowledge-based" forms of economic
activity.3. Actually, a moment's thought will reveal, our
genes are firmware. Evolution made the transition from analog to digital
before the fossil record begins. But we haven't possessed the power
of controlled direct modification. Until the day before yesterday.
In the next century the genes too will become software, and while I
don't discuss the issue further in this paper, the political consequences
of unfreedom of software in this context are even more disturbing than
they are with respect to cultural artifacts.4. See, e.g., J. M. Balkin, 1998. Cultural
Software: a Theory of Ideology. New Haven: Yale University Press.5. See Henry Sumner Maine, 1861. Ancient
Law: Its Connection with the Early History of Society, and Its Relation
to Modern Idea. First edition. London: J. Murray.6. In general I dislike the intrusion of autobiography
into scholarship. But because it is here my sad duty and great pleasure
to challenge the qualifications or bona fides of just about
everyone, I must enable the assessment of my own. I was first exposed
to the craft of computer programming in 1971. I began earning wages
as a commercial programmer in 1973 - at the age of thirteen - and did
so, in a variety of computer services, engineering, and multinational
technology enterprises, until 1985. In 1975 I helped write one of the
first networked e-mail systems in the United States; from 1979 I was
engaged in research and development of advanced computer programming
languages at IBM. These activities made it economically possible for
me to study the arts of historical scholarship and legal cunning. My
wages were sufficient to pay my tuitions, but not - to anticipate an
argument that will be made by the econodwarves further along - because
my programs were the intellectual property of my employer, but rather
because they made the hardware my employer sold work better. Most of
what I wrote was effectively free software, as we shall see. Although
I subsequently made some inconsiderable technical contributions to
the actual free software movement this paper describes, my primary
activities on its behalf have been legal: I have served for the past
five years (without pay, naturally) as general counsel of the Free
Software Foundation.7. The player, of course, has secondary inputs
and outputs in control channels: buttons or infrared remote control
are input, and time and track display are output.8. This is not an insight unique to our present
enterprise. A closely-related idea forms one of the most important
principles in the history of Anglo-American law, perfectly put by Toby
Milsom in the following terms:
The life of the common law has been in the abuse of its elementary
ideas. If the rules of property give what now seems an unjust answer,
try obligation; and equity has proved that from the materials of obligation
you can counterfeit the phenomena of property. If the rules of contract
give what now seems an unjust answer, try tort. ... If the rules of
one tort, say deceit, give what now seems an unjust answer, try another,
try negligence. And so the legal world goes round.
S.F.C. Milsom, 1981. Historical Foundations of the Common Law. Second
edition. London: Butterworths, p. 6.9. See Isaiah Berlin, 1953. The Hedgehog
and the Fox: An Essay on Tolstoy's View of History. New York:
Simon and Schuster.10. See The
Virtual Scholar and Network Liberation.11. Some basic vocabulary is essential. Digital
computers actually execute numerical instructions: bitstrings that
contain information in the "native" language created by the machine's
designers. This is usually referred to as "machine language." The machine
languages of hardware are designed for speed of execution at the hardware
level, and are not suitable for direct use by human beings. So among
the central components of a computer system are "programming languages," which
translate expressions convenient for humans into machine language.
The most common and relevant, but by no means the only, form of computer
language is a "compiler." The compiler performs static translation,
so that a file containing human-readable instructions, known as "source
code" results in the generation of one or more files of executable
machine language, known as "object code."12. This, I should say, was the path that most
of my research and development followed, largely in connection with
a language called APL ("A Programming Language") and its successors.
It was not, however, the ultimately-dominant approach, for reasons
that will be suggested below.13. This description elides some details. By
the mid-1970's IBM had acquired meaningful competition in the mainframe
computer business, while the large-scale antitrust action brought against
it by the U.S. government prompted the decision to "unbundle," or charge
separately, for software. In this less important sense, software ceased
to be free. But - without entering into the now-dead but once-heated
controversy over IBM's software pricing policies - the unbundling revolution
had less effect on the social practices of software manufacture than
might be supposed. As a fellow responsible for technical improvement
of one programming language product at IBM from 1979 to 1984, for example,
I was able to treat the product as "almost free," that is, to discuss
with users the changes they had proposed or made in the programs, and
to engage with them in cooperative development of the product for the
benefit of all users.14. This description is highly compressed, and
will seem both overly simplified and unduly rosy to those who also
worked in the industry during this period of its development. Copyright
protection of computer software was a controversial subject in the
1970's, leading to the famous CONTU commission and its mildly pro-copyright
recommendations of 1979. And IBM seemed far less cooperative to its
users at the time than this sketch makes out. But the most important
element is the contrast with the world created by the PC, the Internet,
and the dominance of Microsoft, with the resulting impetus for the
free software movement, and I am here concentrating on the features
that express that contrast.15. I discuss the importance of PC software in
this context, the evolution of "the market for eyeballs" and "the sponsored
life" in other chapters of my forthcoming book, The Invisible Barbecue,
of which this essay forms a part.16. This same pattern of ambivalence, in which
bad programming leading to widespread instability in the new technology
is simultaneously frightening and reassuring to technical incompetents,
can be seen also in the primarily-American phenomenon of Y2K hysteria.17. The critical implications of this simple
observation about our metaphors are worked out in "How Not to Think
about 'The Internet'," in The Invisible Barbecue, forthcoming.18. Technical readers will again observe that
this compresses developments occurring from 1969 through 1973.19. Operating systems, even Windows (which hides
the fact from its users as thoroughly as possible), are actually collections
of components, rather than undivided unities. Most of what an operating
system does (manage file systems, control process execution, etc.)
can be abstracted from the actual details of the computer hardware
on which the operating system runs. Only a small inner core of the
system must actually deal with the eccentric peculiarities of particular
hardware. Once the operating system is written in a general language
such as C, only that inner core, known in the trade as the kernel,
will be highly specific to a particular computer architecture.20. A careful and creative analysis of how Torvalds
made this process work, and what it implies for the social practices
of creating software, was provided by Eric S. Raymond in his seminal
1997 paper, The
Cathedral and the Bazaar, which itself played a significant role
in the expansion of the free software idea.21. This is a quotation from what is known in
the trade as the "Halloween memo," which can be found, as annotated
by Eric Raymond, to whom it was leaked, at http://www.opensource.org/halloween/halloween1.html.22. As recently as early 1994 a talented and
technically competent (though Windows-using) law and economics scholar
at a major U.S. law school confidently informed me that free software
couldn't possibly exist, because no one would have any incentive to
make really sophisticated programs requiring substantial investment
of effort only to give them away.23. This question too deserves special scrutiny,
encrusted as it is with special pleading on the state-power side. See
my brief essay "So
Much for Savages: Navajo 1, Government 0 in Final Moments of Play."24. See GNU
General Public License, Version 2, June 1991.25. V.
Vallopillil, Open Source Software: A (New?) Development Methodology.26. The looming expiration of Mickey Mouse's
ownership by Disney requires, from the point of view of that wealthy "campaign
contributor," for example, an alteration of the general copyright law
of the United States. See "Not Making it Any More? Vaporizing the Public
Domain," in The Invisible Barbecue, forthcoming.27. A recent industry estimate puts the number
of Linux systems worldwide at 7.5 million. See Josh McHugh,
1998. "Linux:
The Making of a Global Hack," Forbes (August 10). Because
the software is freely obtainable throughout the Net, there is no simple
way to assess actual usage.28. Eric Raymond is a partisan of the "ego boost" theory,
to which he adds another faux-ethnographic comparison, of free software
composition to the Kwakiutl potlatch. See Eric S. Raymond, 1998. Homesteading
the Noosphere.. But the potlatch, certainly a form of status competition,
is unlike free software for two fundamental reasons: it is essentially
hierarchical, which free software is not, and, as we have known since
Thorstein Veblen first called attention to its significance, it is
a form of conspicuous waste. See Thorstein Veblen, 1967. The
Theory of the Leisure Class. New York: Viking, p. 75. These are
precisely the grounds which distinguish the anti-hierarchical and utilitiarian
free software culture from its propertarian counterparts.29. Vinod Vallopillil, Linux
OS Competitive Analysis (Halloween II). Note Vallopillil's surprise
that a program written in California had been subsequently documented
by a programmer in Hungary.30. See "They're Playing Our Song: The Day the
Music Industry Died," in The Invisible Barbecue, forthcoming.31. International News Service v. Associated
Press, 248 U.S. 215 (1918). With regard to the actual terse, purely
functional expressions of breaking news actually at stake in the jostling
among wire services, this was always a distinction only a droid could
love.
32. See "No Prodigal Son: The Political Theory
of Universal Interconnection," in The Invisible Barbecue, forthcoming.
