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Re: [Gnu-arch-users] OT: Slavery???

From: Stephen J. Turnbull
Subject: Re: [Gnu-arch-users] OT: Slavery???
Date: Mon, 24 Nov 2003 14:46:13 +0900
User-agent: Gnus/5.1002 (Gnus v5.10.2) XEmacs/21.5 (celeriac, linux)

>>>>> "Tom" == Tom Lord <address@hidden> writes:

    > From: "Stephen J. Turnbull" <address@hidden>

    > (gdb) step

    > They're not giving up "their software freedoms" in the sense that we
    > usually think of freedom, when we're talking about fundamental rights.
    > They're giving up the right to do certain things with a certain
    > program, certain things that they could not do anyway until they
    > acquire the program.  When you accept Holmes's stricture that you may
    > not scream "Fire!" in a crowded theater, have you given up your
    > freedom of speech?  Of course not!  When you insist that it is right
    > to prohibit proprietary licenses, do you mean to strip me of my right
    > of contract?  Of course not!---you simply intend to restrict it in a
    > way you think is socially desirable.

    Tom> Your "right to contract" is not some a priori element of
    Tom> nature -- some personal liberty granted by a creative force
    Tom> -- which can be modified only by constructing restrictions.
    Tom> On the contrary, your "right to contract" exists _only_ as
    Tom> social construction, at least insofar as _enforcement_ is
    Tom> fundamental to contract.  (Your "right to gentlemen's
    Tom> agreement", being not based on enforcement, is a different
    Tom> matter.)

    Tom> All but one of the GPL software freedoms (to run, copy,
    Tom> modify, and distribute -- but not to obtain source), in
    Tom> contrast, _are_ a priori elements of nature.  They are
    Tom> personal liberties, like speech or association, that truly
    Tom> can only be modified by a constructed restriction (whether
    Tom> voluntary, like a contract, or mandatory, like a copyright,
    Tom> patent, or trademark law).  The restrictions on those
    Tom> freedoms exist only insofar as society as a whole is willing
    Tom> to back them with enforcement.

    Tom> There are, of course, varying theories about the nature of a
    Tom> state's interest in enforcing contract but regardless of
    Tom> which theory you believe in, the decision of what to enforce
    Tom> and what not to is inextricably a matter of public
    Tom> policy. [1]

    Tom> And there are, of course, varying theories about the best
    Tom> form of construction for monopolies granted to authors and
    Tom> inventors -- but again, that question is a matter of public
    Tom> policy.

    Tom> Are you with me so far?


(1) We're not talking about my "right to contract", except as an
example of an issue affected by alleged software freedoms, effects
which I personally find exceptionally unjustifiable.  Since you are
obsessed with it to the point of being unable to discuss anything
else, let's forget about there being a "right" to contract.

(2) You claim that the freedoms of speech and association are
"natural" and "a priori", and can only be restricted by social
constructs.  Speech may be, but association is not. Both the
University of Tsukuba and the University of Tokyo used their
construction budgets to deliberately obstruct the student movement.
In the late 1960s, the University of Tsukuba planners (it opened in
1974) observed the student movement and cancelled plans for a student
union building.  At the same time, the University of Tokyo moved the
proposed site for a new admin building, which when completed occupied
what formerly was the only open space capable of supporting a
demonstration of more than about 150 people within walking distance of
the campus.

Even with speech it's questionable.  For example, equal time
provisions for television exposure of electoral candidates surely are
necessary for true freedom of political speech in this day and age.

(3) Speaking of association, and jumping to "guilt by", please note
that the "_a priori_ elements of nature" argument applies to the
practice (apparently common in Japan) of concealing a video camera in
a shopping bag for the purpose of capturing images of ladies' panties
under their skirts.  That's disgusting, Tom!  Software freedom is
equally so, I guess?  ;-)

(4) So, it all comes down to the social judgment of costs and benefits
of various restrictions on the assorted freedoms.  It's quite clear
that the vast majority of people in societies such as America, Europe,
and Japan are persuaded that the net social benefit of intellectual
property (as such) is non-negative.  There is widespread opposition to
_extension_ of current rules (such as giving DRM further legally
protection), there is widespread support for _rolling back_ some
current rules (including the legally protected status of DRM, patents
on software and business practices, trade name protection, and the
egregious copyright extension).

But support for elimination of intellectual property in software
entirely?  It's a small single-issue fringe lobby, not a mass
movement.  No way you can claim the backing of society for the concept
of software freedom.  What you are claiming is that society,
considered as an aggregate of its members, is crazy, and that with
correct thinking it would agree with you.

And as far as I can tell, it is quite reasonable to suppose both that
the direct economic costs and benefits of proprietary licenses and the
attendant costs of any enforcement society chooses to provide can be
reasonably accurately measured, that these economic costs and benefits
can be approximately translated to social terms, and therefore
compared with other social costs and benefits.  At least, you've
implied as much by talking about balancing costs and benefits.

I am quite sure that the qualitative result of any such analysis would
show that prohibiting _all_ proprietary licenses, or even merely
refusing to enforce them under law, would involve a huge social loss
compared to a judicious use and enforcement of some subset of
proprietary licenses, based on some notion like copyright.  A
quantitative assessment might even show that the current situation
doesn't involve very large losses at all (although I personally have
come to believe that a careful analysis would unambiguously show that
software patents should be killed dead, and the copyright extension
repealed, it's not obvious that the social losses are big in
aggregate).  To judge from his opposition to proposed research aimed
at performing such an evaluation, rms agrees with me.

So you must be talking about something else, something
nonquantifiable, when you talk about costs and benefits.  What?

Institute of Policy and Planning Sciences
University of Tsukuba                    Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
               Ask not how you can "do" free software business;
              ask what your business can "do for" free software.

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