From fsb-return-7834-Bernard.Lang=inria.fr@crynwr.com Tue Aug 27 17:02:20 2002 Received: from nez-perce.inria.fr by beaune.inria.fr (8.8.8/1.1.22.3/14Sep99-0328PM) id RAA0000006101; Tue, 27 Aug 2002 17:02:20 +0200 (MET DST) Received: from ns1.crynwr.com (ns1.crynwr.com [192.203.178.14]) by nez-perce.inria.fr (8.11.1/8.11.1) with SMTP id g7RF2IP12058 for ; Tue, 27 Aug 2002 17:02:19 +0200 (MET DST) Received: (qmail 10103 invoked by alias); 27 Aug 2002 15:01:17 -0000 Mailing-List: contact fsb-help@crynwr.com; run by ezmlm Delivered-To: mailing list fsb@crynwr.com Received: (qmail 10048 invoked from network); 27 Aug 2002 15:00:43 -0000 Message-ID: <20020827145755.9520.qmail@operamail.com> Content-Type: text/plain; charset="us-ascii" Content-Disposition: inline Content-Transfer-Encoding: 7bit MIME-Version: 1.0 X-Mailer: MIME-tools 5.41 (Entity 5.404) From: "Benjamin J. Tilly " To: stephen@xemacs.org Cc: fsb@crynwr.com Date: Tue, 27 Aug 2002 19:57:55 +0500 Subject: Re: How FSBs and liberal economists can be allies [was: universities struggling to avoid making money] X-Originating-Ip: 216.89.71.75 X-Originating-Server: ws5-2.us4.outblaze.com Status: RO Content-Length: 16491 Lines: 330 "Stephen J. Turnbull" wrote: > Followups to fsb@crynwr.com (sorry, shoulda done this already; if > appropriate for the other channels, feel free to speak up). > > Let's try to cut this back to what's relevant to FSB. For those who > think it's too damn long, anyway, an Executive Summary: > > (1) Friedman & Co. are _liberals_ first, economists second, and > therefore our natural allies. We need to show them how freedom _as > they understand it_ is harmed by excessively strong IP. The word "liberal" is used in so many ways at so many times by so many people that I no longer know what any particular person means by it. > (2) The most plausible argument _for this purpose_, which also happens > to be that closest to the needs of FSBs, is that strong IP increases > the power of "blocking innovations". Indeed I would be curious about what Friedman & Co have to say on the subject of patents. Even if one does think that patents are justifiable, the current system is so seriously broken that a major concern has become "blocking NON-innovations". :-( > Such blocking innovations can "suck up" all the "surrounding freedom", > thus limiting consumer choice (and of course, vitiating developers' > freedom). Although unproved, this possibility is too dangerous for > experiments with stronger IP to be justified at present, especially in > light of historically new technologies like software itself, which > argue for _weakening_ IP. You speak as someone too familiar with software development. Software holds out promises for both strengthening and weakening IP. It has increased both the ability of people to copy (and hence the extent to which intellectual property infringes on what people do) and the promise of pervasive enforcement measures that people can imagine would be virtually unseen. It is an obvious conclusion to the experienced that the latter promise cannot be fulfilled, and attempting to do so will cause a myriad of problems that come back to haunt us again and again. However that is a conclusion whose reasoning is difficult to explain to those who have not had to pay close and long attention to the effects of unintended consequences of technical decisions. > >>>>> "Ben" == Benjamin J Tilly <" > writes: > > Ben> "Stephen J. Turnbull" wrote: [...] > Ben> Friedman & Co are advocates of strong property rights and are > Ben> against the extension of existing property rights _for the > Ben> same reason_. > > Correct. > > Ben> They want people to benefit economically for generating > Ben> useful economic activity. > > This is true, but it is not why they support strong IP and oppose > copyright extension. Friedman and Co. are 100% in agreement with > Richard Stallman on this point! _Freedom_ is what it is _all_ about. > That's why they call themselves "liberals." The economic benefit to > individuals and to society is a happy accident, which derives from the > basic rationality of the human being, under conditions of freedom. "Freedom" means more things to more people than "liberal" does. :-) As for the tying together of social goals and economics, there is nothing quite so blind as an idealist who thinks he has a theoretical justification for why people will act in accord with his ideals. The blindness is particularly acute when the theory is a reasonably good (although not perfect - no theory is) match to reality. In that case the theory becomes a fixation that blocks sight of the fact that a particular goal of interest is best reached by another path. (Hammers and nails come to mind here.) You sometimes guarantee freedom best by simply saying that each person owns the right to exercise that freedom, rather than by trying to cut it up into many ownerships and then convince people to sell it to the right persons at the right time... > Extension of existing copyright is bad in Friedman's view because it > is (purely) a public taking. All public takings, as such, reduce > freedom by concentrating resources in the hands of a capricious > authority. IP, like other property, is good because it places > resources in private hands, and defines the rules which make free > contracting (foresighted exercise of freedom in society) economically > possible. Furthermore, when vested in the developer, there is no > public taking; the public has no access until the developer publishes, > which she is free to _not_ do. > > That's what he says in _Free To Choose_ and _Capitalism and Freedom_, > anyway. This is also the the thesis of the brief that he signed for Eldred v. Ashcroft. > Ben> Many copyright holders are for copyright extension and strong > Ben> IP again for one reason. They view the creation of > Ben> intellectual property as an act of creation as real as any > Ben> creation of physical objects or the development of property. > > Granted. I didn't mention that argument myself because if there is a > natural right to intellectual property, the game is over. Free > Software is dead (although the kind of Open Source Richard Stallman > loves to deride remains viable). Nor do we have any common ground > with those who espouse that view. Not so fast! First of all if there is a natural right to intellectual property, then people have the right to dispose of their property in ways that reflect whatever goals and desires that they have. This includes the ability to dispose of it in a way that supports Free Software if you can find a way to do that. Which is exactly what Stallman tried to do with the GPL. Of course he supports only his notion of freedom. We get into trouble when his notion of freedom does not agree with other people's. After all when everyone attempts to exercise the freedoms that they think that they should have, soon there are complaints about punched noses and attempts to limit the freedom to extend fists... Secondly what I consider important are people who do not know what belief to hold. There are reasonable arguments for treating IP as property, and someone who has just been exposed to them is unlikely to react well to your casually dismissing them. Instead you should point out that there are reasonable arguments for not treating IP as property, and once both points are established you can explain how those needs are supposed to be balanced. The problem is that the status quo is a compromise between two extremes. Today the debate is between people who think that there should be a compromise and those who are at one end. The end that is against IP is still present of course, but tends to be utterly incoherent. The result is that it seems reasonable to outsiders to compromise between the middle and the extreme, which is lopsided to say the least. As http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html shows, the other extreme has had competent representation in the past. But I cannot think of anyone today who holds that role. (Probably because the debate is so well formulated that people who are inclined that way follow in Jefferson's footsteps to the conclusion that a compromise between opposing needs is best.) > >> Granted, there really isn't a middle ground for FSB and > >> Friedman that I can see [...]. > > Ben> The identification of a middle ground requires first figuring > Ben> out why each side holds the positions that they do > > Which FSers have signally failed to do. (The burden is on the FS side > for historical and pragmatic reasons.) The liberal economists, as I > wrote, are strongly on the side of freedom for its own sake. We do > not make common cause with them, however; instead, some of us berate > them as agents of the devil for supporting freedom of contract, which > implies the freedom to sell your free software rights. I know of no group that usually succeeds in figuring out what others care about, and darned few of them who figure out what they themselves care about. In fact a group as diverse as FSBers doesn't actually have a common ground. Rather the acceptance of free software is itself a middle ground between people of different views. > In fact, to me this is precisely why Russ Nelson inter alia is > justified in insisting that Open Source is as much about freedom as > Free Software is. Why shouldn't developers and users be free to > choose closed software or open source software as they (jointly) > perceive the tradeoffs between the forms vary? Because Richard Stallman feels that his nose has been punched. Though perhaps that is his fault for sticking it into the printer. :-) > Now, since at the time of innovation, the technology of the innovation > is privately held (ie, a secret), such contracting (bargaining over > license terms) is theoretically possible. And this would allow the > balancing of consumer (including follow-on developers) and developer > interests. However, the information, transaction, and enforcement > costs would be overwhelming (especially for second-order developers, > viz, FSBs). Thus, the liberal interpretation of IP (strong or > otherwise) is as a way to shortcut the transaction costs of > contracting. It's not an issue of proper reward; it's one of > facilitating trade. (Why do all the rights initially vest in the > developer? "Possession is nine-tenths of the law." Initially the > developer possesses the idea.) Here is what I cannot get out of my head. 10 man-hours per document in practice just to IDENTIFY who owns the copyright so that you can try to enter into a transaction. Some shortcut... > Then the danger of strong IP is not strong IP for each idea. Instead, > it is the fact that since ideas are used in combination, the more free > software there is, the more valuable the remaining proprietary ideas > become (to the extent that they are "blocking innovations", ie, > necessary to some important product). This (theoretically) means that > a few blocking innovations could cause efficiency losses, and > implicitly losses of consumer freedom to choose, far out of proportion > to their "standalone" importance (eg, probability of independent > invention). This is an argument against patents, not copyright. Patents have exactly this effect. But re-inventing a way to do something that you have seen work is far easier than figuring out how it could work in the first place. Therefore when only copyright is on the table, all innovations are enabling. > Theoretical though that argument is, I think it's strong justification > for treating strong IP warily indeed. We just don't know enough, and > we could do serious long-term damage by excessive grants. I wish the patent office took that view... [...] > Ben> While it is easy to dismiss Congress and the RIAA as "pork > Ben> barrellers", flipping the "bozo switch" there prevents you > Ben> from hearing or being able to address the arguments that > Ben> influencing people towards strong IP. > > I'm not dismissing _them_. I'm dismissing the possibility that we > will be able to change their minds, the vast majority of them. The > combination of strong self-interest and a plausible moral principle is > extremely difficult to overcome. The only universally successful > strategy is to outlive the holders of such "incorrect" thought. :-) It seems that you are also precluding yourself from convincing the people who might be convinced by their arguments, but who could be convinced otherwise as well. > My wisecrack aside, how do you propose to "address" the moral argument > for perpetual IP? if it cannot be conclusively refuted, how do you > propose to flush out the pork barrellers from among the genuinely moral? By pointing out the moral argument against binding each person with a thousand chains in perpetuity. Most people are able to understand that there may be competing valid concerns. Once that is accepted, the desire to forge a more thoughtful compromise becomes understandable. > Ben> The fact is that the arguments for strong IP and long > Ben> copyright terms that you hear today [...] fall into an > Ben> intellectual tradition that goes right back [...]. While you > Ben> might not _agree_ with them, > > But I _do_ agree with those arguments, in a Panglossian world. Just > as I agree with Richard Stallman's, in that world. The problem is > that both can't be right, although neither can possibly be wrong, in > the world that I actually live in. Why can't both be right? Each has laid out an argument saying that there is a legitimate interest in having things be this way. Both arguments can be correct - the legitimate interest exists. We therefore must find a way to balance those concerns. Many tools exist for that, and many fields (including economics, the law, and politics) address themselves to little else than the question of how to balance competing interests. > So I propose, with Friedman, that we allow them to contract their way > out of their dilemma. That is the only solution compatible with > freedom. And indeed, that is the standard economic answer to how to balance concerns. But that doesn't work when it takes 10 man-hours _just_ to figure out who the right person is to try to negotiate a contract with! For those who do not know, this figure is from the brief from 15 library that you can find at http://eon.law.harvard.edu/openlaw/eldredvashcroft/legal.html. The link does not appear to work at the moment, but that figure was their experience in tracking down the owners of historical documents from the 20's and 30's that they wished to digitize and put online. The figure of 10 man-hours is actually an optimistic estimate since they only engaged in the search when they had prior reason to believe that it would be relatively easy to find the owner. > Footnotes: > [1] FSB is historically unprecedented because software makes it > possible for uncoordinated individuals to have big economic effects. > But this is not recognized by either economists, lawyers, or political > scientists to date. I find that there are more historical precedents than you are admitting. After all free markets allow uncoordinated individuals to have big economic effects! An even better area (imho) to look for precedents is the economics of networks (eg mail, telegraphs, telephones...), another area where there are huge economic effects from seemingly random interactions. > [2] This doesn't mean that the system can't be made substantially > more efficient. Of course it can, and Friedman & Co. recognize that. > It just shows that issues of transactions costs are second-order > issues in their scheme of things. I disagree that it is a second-order issue when you spend 10 man-hours of work for a transaction worth at most a few dollars. Furthermore if I am right that networks are a good place to look at for models of how software works, then transaction costs are likely to be *dominant* effects, rather than second-order issues. Please read http://www.firstmonday.dk/issues/issue6_2/odlyzko/ ("Content is NOT King" by Andrew Odlyzko) to see what I mean. As he demonstrates, the value of a network goes up the more that you can lower the transaction costs which are associated with using it, and yet paradoxically there winds up being far more money to be made in providing access to the network than there is to be found in trying to supply content. I believe that there is a close parallel with free software. Making it free to get and modify the software drops transaction costs. This results in creating a development network of more value than would be produced otherwise. Within that network the greatest value to be found is in providing access, whether that access is through publishing books, training people, providing support, or accomplishing things using your expertise in those tools. In short the "free" in free software is justifiable as a business decision because transaction costs are so dominant an economic effect that you are willing to give up direct revenue to avoid them. Of course this decision is not a no-brainer. But that it can be a viable choice says that economists should think again, long and hard, about the importance of transaction costs. Cheers, Ben -- _______________________________________________ Download the free Opera browser at http://www.opera.com/ Free OperaMail at http://www.operamail.com/ Powered by Outblaze From fsb-return-8150-Bernard.Lang=inria.fr@crynwr.com Sat Oct 26 11:14:31 2002 Received: from nez-perce.inria.fr by beaune.inria.fr (8.8.8/1.1.22.3/14Sep99-0328PM) id LAA0000006828; Sat, 26 Oct 2002 11:14:31 +0200 (MET DST) Received: from ns1.crynwr.com (ns1.crynwr.com [192.203.178.14]) by nez-perce.inria.fr (8.11.1/8.11.1) with SMTP id g9Q9EUD27740 for ; Sat, 26 Oct 2002 11:14:30 +0200 (MET DST) Received: (qmail 28272 invoked by alias); 26 Oct 2002 09:14:00 -0000 Mailing-List: contact fsb-help@crynwr.com; run by ezmlm Delivered-To: mailing list fsb@crynwr.com Received: (qmail 28256 invoked from network); 26 Oct 2002 09:13:59 -0000 To: "Benjamin J. Tilly " Cc: fsb@crynwr.com Subject: Re: How FSBs and liberal economists can be allies [was: universities struggling to avoid making money] References: <20020827145755.9520.qmail@operamail.com> From: "Stephen J. Turnbull" Organization: The XEmacs Project Date: Sat, 26 Oct 2002 18:12:53 +0900 Message-ID: <87smyt36ne.fsf@tleepslib.sk.tsukuba.ac.jp> User-Agent: Gnus/5.090007 (Oort Gnus v0.07) XEmacs/21.4 (Military Intelligence (RC3), i686-pc-linux) MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: "Stephen J. Turnbull" Status: RO Content-Length: 19133 Lines: 385 Jeez, this was long. I've cut it by about 50%, but it's _still_ _long_. I've rearranged it to present the economic arguments first, followed by the political/philosphical/rhetorical strategy stuff. Besides chopping up context, my statements are _really_ terse. Please interpret this as my respect for other readers, rather than any disrespect for Ben or his ideas. I've tried hard not to take his words out of context, with a fair amount of success (I hope) because much is clarifying my own post. My apologies for remaining failures. Executive Summary: 1. The unknown rights-holder ("10 man-hours of work for a transaction worth a few dollars") problem is debunked from pragmatic and theoretical viewpoints. (First 100 lines.) 2. Various and sundry points debated with Ben. (Sorry, but that's the most specific statement that's still accurate.) ***** Economics ***** >>>>> "Ben" == Benjamin J Tilly <" > writes: Ben> And indeed, [free contracting] is the standard economic Ben> answer to how to balance concerns. But that doesn't work Ben> when it takes 10 man-hours _just_ to figure out who the right Ben> person is to try to negotiate a contract with! Do you suppose that that 10 man-hours is a _permanent_ feature of the IP system? Heavens, no! Consider Kinko's "Professor Publishing," which performs _exactly_ this service for professors who wish to create a unique compilation of articles for a class. I bet Kinko's has it down to about 15 minutes for a whole one-page reading list, mostly low-skill keypunching and envelope-stuffing. Of course the "technology" used by Kinko's to serve me at very low cost will not serve Kinko's to solve the "unknown owner" problem, but to insist it's insoluble at higher, but still reasonable, cost is untenable. Professor Publishing didn't exist 15 years ago, although both Kinko's and fairly cheap Xeroxing did. With near certainty, 15 years from now, _if_ this is a big enough problem to be worth solving, there will be similarly efficient technical solutions to the problem. And of course it will just get easier and cheaper on average as the "bit trail" gets broader as the works in question become digital. Or consider the _exactly analogous_ "title insurance" problem in real estate. Something similar could be set up for "old" IP. The transactions costs are proportionately higher compared to the value of the individual transaction, it is true, but probable losses are by the same token much lower. Premia would probably be reasonable. More to the point, they'd be line items in the proposal to the NEH. Of course, the transition period involves (possibly large in aggregate) losses from the "unregistered old IP" problem. But that doesn't justify implementing the "wrong" IP system permanently! At best, it justifies an implementation where "old" copyrights that are not registered with an appropriate public access, publically funded (no proprietary Westlaw, please) database by 11:59 pm December 31, 2005 UTC will revert to a system for assessing royalties _ex post_ on a scale fixed by legislation (ie, not allowing unregistered works to extort royalties ex post from compilation editors), and thence to public domain at their existing expiration. It is the owner's responsibility to file the registration. Until that date, newly registered "old" works are subject to an arbitration system, with the legislated scale to be given strong weight in the assessment of "ex post" royalties. I'm not saying that this solves all the problems, but the ease with which I came up with the three proposals above makes me wonder whether the radical, permanent changes often demanded by FSBers are really necessary. And I'm _dead certain_ that Friedman & Co. are well within the bounds of reason to say the burden of proof is still on us to show that "free contracting" isn't enough. Ben> I disagree that [transaction cost] is a second-order issue Ben> when you spend 10 man-hours of work for a transaction worth Ben> at most a few dollars. First, you're out of context: I explained under what circumstances it would be second-order, and why that is the right way to think about it if we want to get and keep Friedman & Co. on our side. Second, if the example transaction is worth a few dollars, and the transaction cost is ten man-hours, you don't need the former Senator from Wisconsin to give it a Golden Fleece Award. Some things just aren't worth doing is the obvious answer in many such circumstances. But obviously you misspoke yourself. What you presumably mean is that the _social_ value is "high," but the compilation project only has a few dollars per work budgeted for compensating owners and transaction costs. Thus a net-positive-value task is blocked. The "rights" answers to that are (a) this is a valuable property, and you are trying to cheat the current owner (who should get up to `social value - transactions cost', depending on bargaining skills), or (b) the NEH underfunded the project; too bad. These are valid economic answers as well, but the Jeffersonian economist sees a third way, namely adjusting the property rights regime to reduce transactions cost, as you propose. But the project is obviously socially marginal: you and I have already spent 10 man-hours on this thread; if the copyright is worth less than this thread, who cares?! Is it really worth a revolution in the country's and the world's IP regime to make sure that some oddball's flames to U. S. Grant get digitized for the sake of "completeness"? Even if you add up _one million_ such $100 wins, you're still an order of magnitude away from "real money". Can't the whole "Grant Corpus" project wait until Kinko Copyright Insurance gets its act together? The only rhetorical question in the preceding 2 paragraphs is marked with`?!'. I don't mean to imply I know the answers to the others, if rephrased for reasonable examples, only that the implication of your example is by no means obvious. My responses would be, though, to any professional microeconomist. (May you never run into George Stigler!) We need to deal with these arguments; they will be made. "Stephen J. Turnbull" wrote: >> [H]istorically new technologies like software itself [...] >> argue for _weakening_ IP. Ben> You speak as someone too familiar with software development. I'm specifically referring to the fact that software can be developed and disseminated without being associated with large concentrations of capital, viz the GNU system. Furthermore, the "firmware-ization" of much hardware may hold similar promise for traditional goods. This implies that the franchising of monopolies, justifiable only for the purpose of compensating capital for innovation, loses (some of) its _economic_ justification. Thus, weakening is appropriate. Ben> [New technology] has increased [...] the promise of Ben> pervasive enforcement measures that people can imagine would Ben> be virtually unseen. This is not a _justification_ for strengthened IP. It merely suggests that some of the technical and ethical difficulties would be reduced _if_ there were another justification for strengthened IP (eg, the alleged natural right of creators). Ben> You sometimes guarantee freedom best by simply saying that Ben> each person owns the right to exercise that freedom, rather Ben> than by trying to cut it up into many ownerships and then Ben> convince people to sell it to the right persons at the right Ben> time... But that's the beauty of the property rights scheme. The invisible hand _works_. There's no need to "convince," just leave them alone. They'll figure it out for themselves, and cheaply, too. At least, it works better than the commons. The Enclosure Movement proved that. Yes, the Enclosure Movement screwed the smallholders and peasants, and most never recovered. But there's no question that it made life much better for pretty much everybody else by making food production dramatically cheaper. The dire implication for FSBs is obvious, but ... omelets and eggs, you know. Now you're going to say "but software is different" because it's non-rival and generates network externalities, unlike pastureland. Yes---but we have only two decades real experience with _any_ good like software. The other non-rival goods we know about are the so-called public goods that "justify" monopoly government. It seems to me _more_ likely that free software will suffer from _both_ the tragedy of the commons _and_ the free rider problem than that it will suffer from _neither_. Of course, either problem by itself is enough to suggest IP as a "second-best" solution (ie, not as good as possible to a benevolent omniscient central planner, but the best possible in view of the economic incentive constraints). Ben> [The argument from "blocking innovations"] is an argument Ben> against patents, not copyright. Patents have exactly this Ben> effect. But re-inventing a way to do something that you have Ben> seen work is far easier than figuring out how it could work Ben> in the first place. Therefore when only copyright is on the Ben> table, all innovations are enabling. Only if you use the definition of "innovation" used by the PTO. Economically "innovation" is basically equivalent to "marketing a new product", and the compilations and comprehensive corpuses that you "can't get out of your head" count as innovations under that definition, although by definition they themselves contain nothing new. These are blocked by the "component innovations" (individual shorter works). [Note: I don't mean to deny the usefulness of the definitions of "innovation" used by the PTO or by FSBers. I am saying that when talking to economists, we should use their lingo.] >> FSB is historically unprecedented because software makes it >> possible for uncoordinated individuals to have big economic >> effects. But this is not recognized by either economists, >> lawyers, or political scientists to date. Ben> I find that there are more historical precedents than you are Ben> admitting. Your analogies are inexact in important ways. This is not the time or place to go into detail. The most important is that U.S.-sized impact in any given traditional market, _including_ those with sizable network externalities, requires a proportional-to-U.S.-sized labor force. But there is only one Linus, and maybe a few thousand in total who got the famous letter from Red Hat, and there's no reason to suppose that getting a China-sized effect out of Linux requires any new Linux developers (except for I18N, which will also be a fixed cost unrelated to the population of China), just more "traditional" communication and distribution networks in China. In this sense, the only software-like goods I know of are pure consumption goods: music and books. These do not generate the same kind of economic leverage that a productive asset like software does. And if you try to turn books into a productive asset, you get "education". Oops.... Ben> Furthermore if I am right that networks are a good place to Ben> look at for models of how software works, You're almost certainly not. If you were, the same system of property rights that works tolerably well under the circumstances for telephone calls and railroad trips would work for software. Ben> I believe that there is a close parallel with free software. Ben> Making it free to get and modify the software drops Ben> transaction costs. Unlikely. Transactions costs drop, yes. But compare academic publishing, a much more realistic analogy than commodity services like telephone communications and rail transport. Software is not a commodity, by definition. Ben> But that [free software] can be a viable choice says that Ben> economists should think again, long and hard, about the Ben> importance of transaction costs. Who says it is viable? Tom Lord claims to be starving. CoSource.com and sourceXchange are both defunct. Richard Stallman wants free software to be tax-supported. Red Hat and SuSE are based partly on reducing the transactions costs of software that's already 100% free. And Perry Metzger calls it a "lifestyle business"! Note that _I_ do not deny its viability. However, I just don't see enough evidence for viability to justify demanding a paradigm shift from Nobel-Prize-winning economists. ***** Political Philosophy ***** >> (1) Friedman & Co. are _liberals_ first, economists second, and Ben> The word "liberal" is used in so many ways The British one. "Libertarian" in American parlance is close enough. Ben> You sometimes guarantee freedom best by simply saying that Ben> each person owns the right to exercise that freedom[...]. Freedom unlimited by others' rights degenerates to might makes right. Cf. Karel van Wolferen, _The Enigma of Japanese Power_. It can work, as Japan proves, but most Japanese are _significantly_ less free in many ways that are important to Anglos. I think it would chafe especially on those who espouse the FSB ethos. Ben> [I]f there is a natural right to intellectual property, then Ben> [you] have the right to [...] dispose of it in a way that Ben> supports Free Software if you can find a way to do that. We really don't want FSBs to depend on noblesse oblige; there's damn little noblesse, and less oblige, in the business world. If there is a natural right, I see no excuse for (corporate) businesses to give up the option---they should decide whether to exercise it on a case by case basis, instead. Then free software simply becomes a pole of a continuum of acceptable licenses for business---surely not the default. Ben> Secondly what I consider important are people who do not know Ben> what belief to hold. There are reasonable arguments for Ben> treating IP as property, and someone who has just been Ben> exposed to them is unlikely to react well to your casually Ben> dismissing them. I don't dismiss arguments, based on reason or otherwise, when I run into someone who holds them. Eg, my whole purpose here is to focus on the "social construct" rationale that you and I share, although I lean far more to the "IP is OK" side than you do. (I have hope you'll convince me of my error, but ... well, please try harder!) But on FSB, I see no present benefit to discussing the natural rights theory of IP beyond noting that we cannot refute people who believe it. On FSB, few, if any, hold that theory. That theory, and the Gordon Gecko argument it may conceal, are all that I dismissed. Ben> Instead you should point out that there are reasonable Ben> arguments for not treating IP as property, But there are _no such arguments_ if IP is a natural right, to go along with life, liberty, and the pursuit of toys to die for. All we can do is "damage limitation" with arguments like a "moral obligation to put that IP to socially beneficial use" and the "transaction cost economies of open source." Ben> The problem is that the status quo is a compromise between Ben> two extremes. They are not "extremes". Calling the principles that the status quo compromises "extremes" compounds the persuasion problem. They are different dimensions, not bounds along a single dimension. They might be social goals (securing rewards to the productive vs. distributing gains that derive from being part of a society widely in that society) to be balanced. Alternatively, incompatible rights one or both of which must be compromised (preferably with the rights-holders' consent). Either way, gains from negotiation are much easier to realize in a multidimensional framework. Ben> As http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html Ben> [Jefferson] shows, the other extreme [from the natural rights of Ben> inventors position] has had competent representation in the past. Which "other extreme" (ie, dimension)? There are several. There is Proudhon: property is theft. There is Marx: property belongs to society. There is Jefferson: property is a social construct, based on occupation of the property. There are others. Unfortunately, Jefferson's argument against property in inventions is vulnerable to the same ASP loophole that the GPL is. (Actually, any "process technology" demonstrates this loophole, but ASPs make it glaringly obvious.) Due to the Internet, it _is_ possible to "occupy and not relinquish" certain works of software _while exploiting them commercially_, in a way it is not possible to "occupy" a book or a hardware invention. Then using exactly his analogy we may generalize to perpetual property in such software, just as property in land is perpetual. Extension to all software and further to all intellectual capital is not automatic, but it is no longer so implausible as Jefferson would have you believe. >> [H]ow do you propose to "address" the moral argument for >> perpetual IP? Ben> By pointing out the moral argument against binding each Ben> person with a thousand chains in perpetuity. Specious. That is an argument against _all_ property. Eg, in land. Title to land must involve 100 million "bricks in The Wall" in the U.S. alone. You have to come back to the non-rivalry of intellectual assets, which is an economic, not a moral, argument. As such it cannot prevail against a natural right of creators. The only way to counter a right is with another right. Ie, Stallman's "right to share." Ben> Why can't both [Stallman and Justice Thompson[1]] be right? Ben> Each has laid out an argument saying that there is a Ben> legitimate interest in having things be this way. Both Ben> arguments can be correct - the legitimate interest exists. I'm drawing a distinction between rights and interests. (You don't seem to, or perhaps you don't admit that it matters.) Rights are either compatible, in which case there is no problem, or they conflict. The latter is the case here. Both Stallman and Thompson insist on the primacy of the right they assert---both cannot be correct in that insistence. Ben> I know of no group that usually succeeds in figuring out what Ben> others care about, and darned few of them who figure out what Ben> they themselves care about. FSB has an excellent track record IMO. That's the only possible reason why I'm tolerated here. :-> Footnotes: [1] The author of the dissenting opinion in Wheaton vs. Peters, http://press-pubs.uchicago.edu/founders/documents/a1_8_8s15.html, the strongest statement of the natural rights position I know on the net. -- Institute of Policy and Planning Sciences http://turnbull.sk.tsukuba.ac.jp University of Tsukuba Tennodai 1-1-1 Tsukuba 305-8573 JAPAN My nostalgia for Icon makes me forget about any of the bad things. I don't have much nostalgia for Perl, so its faults I remember. Scott Gilbert c.l.py From fsb-return-8157-Bernard.Lang=inria.fr@crynwr.com Sat Oct 26 20:39:46 2002 Received: from nez-perce.inria.fr by beaune.inria.fr (8.8.8/1.1.22.3/14Sep99-0328PM) id UAA0000015957; Sat, 26 Oct 2002 20:39:46 +0200 (MET DST) Received: from ns1.crynwr.com (ns1.crynwr.com [192.203.178.14]) by nez-perce.inria.fr (8.11.1/8.11.1) with SMTP id g9QIdjD03924 for ; Sat, 26 Oct 2002 20:39:46 +0200 (MET DST) Received: (qmail 2496 invoked by alias); 26 Oct 2002 18:39:02 -0000 Mailing-List: contact fsb-help@crynwr.com; run by ezmlm Delivered-To: mailing list fsb@crynwr.com Received: (qmail 2474 invoked from network); 26 Oct 2002 18:38:55 -0000 User-Agent: Microsoft-Entourage/10.1.0.2006 Date: Sat, 26 Oct 2002 11:37:40 -0700 Subject: Re: Successful FSBs From: "Tim O'Reilly" To: "Stephen J. Turnbull" , "Forrest J. Cavalier III" CC: Message-ID: In-Reply-To: <8765vp36n9.fsf@tleepslib.sk.tsukuba.ac.jp> Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit Status: RO Content-Length: 10448 Lines: 199 On 10/26/02 2:12 AM, "Stephen J. Turnbull" wrote: > There is a sort of Laffer curve for definitions. If they are too > strict, the applicable cases are too few, and only academic > specialists are interested. I'm certainly biased in that direction; I > both try to correct for it and admit it explicitly on a regular > basis. But if they are too weak, then everything qualifies and S/N > goes to pot as everybody jabbers about what interests them in terms > they have more or less private definitions for. > > For example, Tim says he wants to include Amazon, which clearly has > unnecessarily chosen the proprietary road on occasion (Amazon wins on > title coverage, economies of mass purchase, and stock management > including fast delivery; "one click" ordering just isn't that big a > deal). FWIW, I didn't say that Amazon was *now* an FSB. I *did* say that any definition of FSB that ipso facto excluded exploration of google, yahoo!, amazon, and host of ISPs as FSBs was prejudicing the very question that the thread was purporting to ask: what can would be entrepreneurs learn from "successful FSBs." The tragedy, I've argued, is that amazon, google, et al don't consider themselves FSBs and act accordingly. And for me, "accordingly" is explicitly and judiciously engaging with open source projects they depend on, NOT making everything they do open. And of course, it's an even greater tragedy that folks thinking about what makes a "successful free software business" are arguing about who's pure enough to be considered rather than trying to understand what really works and how. It is my belief that the most successful business models for FSBs come from the use of the software to deliver software services, not from its resale, or from the resale of supporting goods. The ISP market is the clearest example of this model, in which companies charge a monthly fee for access to services based on free software (Bind, Sendmail or equivalent, Apache, and various elements of the TCP/IP stack). But by extension the concept applies to companies leveraging free software further up the service stack. There's a huge amount to be learned from studying such companies, including the kinds of margins you can get from services built on commodity software (vs. from proprietary software that isn't shared by competitors.) I believe firmly that the economic message of free software is to develop business models that assume relatively fungible commodity software, and to get your money from services based on that software. The challenge is to understand whether (or when) you get your marketplace advantage from an additional layer of proprietary software, and when you get it from things external to the software itself. (By analogy, in the hardware market, Dell gets its advantage not from unique proprietary extensions to commodity hardware, but from economies of scale, superior logistics, and the lower cost structure of its direct sale business model.) Even worse than when the companies that ought to be seen as part of the free and open source ecosystem are disregarded is when the natural business model of a piece of free software is signed over wholesale to a hostile monopoly. I'm thinking of Verisign/Network Solutions. Running domain name registration services *is* the natural business model for BIND, but no one in the FS business realized it until too late. If FS advocates had been thinking more about software as service, we would have avoided the whole ICANN fiasco, and had a competitive domain name registration system based on commodity free software. Of course, it's also true that domain name registration wouldn't be as profitable for a host of players as it is for a single monopoly player (even now with regulated competitors nipping at the edges), but that's beside the point. I keep hammering on this point because I think that software as service *is* the future. We're moving into a world in which software that runs on a single isolated platform is going to be the exception rather than the rule. Almost all software will have an online service component. Microsoft completely gets it. What was Passport but an attempt to create identity services? MyServices had a whole host of forward-looking services. But Microsoft is having trouble getting traction, because they think like a monopolist, and the market has seen that movie before, and doesn't like the ending. (But Microsoft will be back, hopefully with a more open version, but it will likely still not be as open as many of us would like.) To my mind, anyone who wants to think about "successful FSBs" should be thinking about the range of services that will be part of the future "internet operating system" and what businesses could be built on those services. Go study .Net and the MyServices vision, and ask yourself how many of those components are mirroring things that are already out there as free software. While the free software pundits are arguing over who is an angel allowed to dance on the head of this pin, we are fortunate that there are individual developers building software that does look forward to the future. For one example, take a look at a proprietary company like groove, which is building various kinds of groupware services--not just software, but the services that make that software work, such as management and synchronization of an "XML cloud"--and ask yourselves whether similar services could be built, say, on jabber, or even Apple's lightweight rendezvous/zeroconf framework. Or take a look at Ping Identity Services (http://www.pingid.org/) and other folks trying to build digital identity alternatives to Passport. They aren't "free software" per se, but they are fellow-travelers who ought to be engaged in the discussion. > > I agree with him that Amazon wins if the best platforms are all free, > but this is a matter of pissing in everybody else's soup. The point > is to make sure that nobody steals a march on you by introducing a > much better platform than yours, not that Amazon has a core competence > in use of platforms, much less development. But Amazon is basically > an ASP, and they want to keep the software concerning their core > competences private. To the extent that that integrates with OSS > they've pulled in, they are _not_ going to contribute back to the > community, and in fact they probably don't want their developers to > participate in the community. That's actually not true. The developers there are very open to working with outsiders. I've been working that angle for some time, and making connections for them. But I won't argue your basic point. > > Like Tim himself, Amazon is in the business of relying on IP---it > distributes it. Unlike Tim (AFAIK), proprietary IP is also a core > competence (I would assume, and their IP strategy indicates that they > think so). This is an FSB? I think not. I agree that Amazon is in the business of relying on proprietary IP, but so is Collab.Net. I'm sure that neither qualifies as an FSB by the narrow definitions espoused here. But there should be a definition that understands more nuance than has been shown in this discussion. For example, even a company like Red Hat, which most people here would (I think) qualify as an FSB, relies on proprietary IP. They get a significant fraction of their revenue from training. Are their training materials all under the GPL, and circulating on the net, able to be used by competing "Red Hat" trainers? I think not. In the end, I think you'll find very few "pure" FSBs. I would suggest a set of categories, perhaps something like this: Company relies on free software for the majority of its revenue and espouses free software ideology and thinks of itself as part of the F/OSS community. Examples: Red Hat, LinuxCare, VA Linux (the latter two included for historical reasons) Company relies on free software for the majority of its revenue but disregards free software ideology. Examples: Uunet and other ISPs Company relies on free software for the majority of its revenue but is actually hostile to free software ideology. Examples: Verisign/Network Solutions Company relies on free software and additional proprietary software or other IP, and thinks of itself as part of the F/OSS community even though not all its software is free. Examples: Collab.Net, Sleepycat, Aladdin, O'Reilly Company relies heavily on free software and additional proprietary software, but disregards free software ideology and doesn't think of itself as part of the F/OSS community. Examples: Google, Amazon, TiVo Company leverages free software strategically because it benefits from commodity software, and proactively engages with the F/OSS community even though it gets most of its revenue from other sources. Examples: IBM, HP, (Apple), (Sun) Company leverages free software strategically, tries to learn lessons from the free/open source software model, but depends on proprietary software or other proprietary IP for the heart of its business model. Examples: Microsoft, (Sun) Company uses proprietary software model to deliver services, but might be able to leverage open source model to improve its business. Example: AOL (Mapquest and AIM (not to mention the core AOL service) are both Microsoft targets, and I predict that both will fall because of AOL's go-it-alone strategy, whereas if they were to embrace at least open standards, and perhaps F/OSS, they could stay ahead of the game.) By studying the strategies, successes, and failures of companies in each of these categories, it might be possible to develop some useful advice for would-be free software entrepreneurs. And more importantly from my point of view, we might get more allies and supporters in the fight to keep the next generation of computing open. That's my real agenda. I'm convinced that free and open source software have built an amazing open computing platform (i.e. the internet) but that many free and open source advocates haven't thought through where that platform goes next, and the consequences of failing to get people who are building components of that platform to think about their indebtedness to the free/open source software ecology. -- Tim O'Reilly @ O'Reilly & Associates, Inc. 1005 Gravenstein Highway North, Sebastopol, CA 95472 1-707-829-0515 http://www.oreilly.com, http://tim.oreilly.com