MS attacking government use of "open source"

Robert G. Brown rgb at
Thu May 23 13:38:17 PDT 2002

On Thu, 23 May 2002, Bob Drzyzgula wrote:

> On Thu, May 23, 2002 at 10:39:19AM -0700, Greg Lindahl wrote:
> > 
> > On Thu, May 23, 2002 at 01:09:08PM -0400, Bob Drzyzgula wrote:
> > 
> > > I think that a lot of this comes down to what you
> > > believe about the concept of royalties and rentals, and
> > > intellectual property in general.
> > 
> > There are people who cast the problem that way. There are people who
> > do not. Red-baiting went out with the end of the cold war, no?
> Thank you. Can you suggest an alternative cast
> of the problem? 

Since I agree with Greg (and he tends to be "terse":-) I'll give it a

You can be a passionate defender of the right of ownership to
intellectual property and still a full supporter of both Open Source and
the new "public licenses".

First of all, do not confuse ownership of intellectual property and
permission to use it (the license).  The two are not the same, which is
at the core of the conflict.  If I write completely original code for
some novel purpose, it is mine, period, and I get to determine who can
"use" it (own copies of it) and who cannot.  I own the copyright.  If I
write a novel, or paint a picture, or compose a symphony, ditto.  I can
determine who gets to make copies of my original manuscript, or canvas,
or score for any or all purposes.  If I invent something (complications
with Duke aside, as they'd almost certainly want a chunk of any patent)
my "ownership" of the invention is not quite as clear but still clear

I personally fully defend private and personal ownership of intellectual
property.  Without it who would write novels?  Novelists and artists are
more likely to live on the edge of starvation than in riches -- it is
only fair to reward them lavishly as compensation for hard times and
risk if they create something fabulous.  Code doesn't perfectly fit this
model, but it isn't a terrible fit, either -- plenty of coders don't
make a huge income or are at risk when they work on a project and fully
deserve great rewards in compensation for hard times and risk.
Yay, capitalism.

True capitalists have to openly dislike and even fear unrestrained
monopolies.  A monopoly creates an unbalanced market and ultimately
utterly destroys real capitalism, which requires a lot of distributed
and available capital.  One can achieve the undesirable market control
by "the state" by both the totalitarian/communist/socialist route, where
the state owns all the capital, or by the monopolist/capitalist route,
where a few large companies own all the capital and >>become<< the de
facto state.  When large monopolies start actively engaging in public
policy debates to attempt to have themselves locked into their
advantageous position by actual law, one has to worry about the latter.
With communism in disarray, I'm a >>lot<< more worried about the latter.

Curiously, it is the open >>theft<< of intellectual property that annoys
me most about certain large companies that, for example, used a mix of
market position and the fact that they owned and controlled the
operating system to ensure that their spreadsheet, their word processor,
their web browser, their integrated development environments (none of
which did they conceive or invent) to drive the original conceivers and
inventors all but out of business.  Has Microsoft's business practices
increased or decreased the diversity of software available over the last
decade?  I think that the answer is obviously decreased, tremendously.
It still astounds me that anyone would actually develop innovative new
software at all for an operating system in the certain knowledge that if
it actually succeeded as the next "killer app" they'd have 2/3 of their
market share stolen away within 3-5 years.  The few that persist in this
market are those who are content to get "kind of" rich before getting
squashed.  Being bought out by Microsoft (before being crushed) becomes
an acceptable end stage business plan.

I also am offended by tactics obviously designed to perpetuate a
monopolistic grip on a market masquerading as "defense of intellectual
property".  For example, I find the notion of "proprietary" formats for
things like documents or network protocols to be more than a bit
ludicrous, especially when trivially derived from or modified from
well-known and unlicensed work.

So, if I write a book, make a movie, cut a recording, or write some code
it is mine to dispose of as I wish.

Ways I can legitimately dispose of my intellectual property include
selling OR giving away freely >>rights to own a copy of it<< (personally
or through an agent) or >>rights to make copies of it for sale or
gift<<.  Alternatively, I can prohibit any such copies from being owned,
or made -- the work is mine alone and I can impose any reasonable and
lawful conditions on the manufacture and distribution and ownership of
copies.  The only significant modification of this right is that of
"reasonable use", where the owner of a copy RIGHT can make an archival
copy against e.g. media failure.  In a sense, I'm not buying the MEDIUM
when I buy a CD with music on it, I'm buying the right to own a copy of
that music on whatever medium, and that right persists when the medium
itself may well have failed or become obsolete.

Note that I say "copies".  Copyright is just that -- it does NOT
transfer ownership of the intellectual property (although it can be
bought or sold as the right to GRANT copy rights).  I own a copy of
"Terrapin Station".  I do not own the work itself.

So, I am free (as the owner) to make COPIES of my own work freely
available subject to the provisions of the GPL while retaining the
ownership of the work itself.  I am equally free to insist that any
derivative work that includes my original work in any substantive way
inherit the restriction.  I am probably free to insist that the right to
own copies is contingent upon the person stripping naked and rubbing
blue mud in their navels.  Or, of course, that you pay me money, or pay
my agents money, who will then pay me royalties out of that money.  You
want to own a copy, you decide.

As to the encumbering effects of the GPL:

  a) Damn right there are encumbering effects.  RMS is betting that in
time they will be so all-embracing that nonsense like the DMCA will
become impossible, as nearly any scheme like that that is thought up
will turn out to EITHER require reinventing the universe (let alone the
wheel) from the ground up OR will end up requiring one or more GPL
components.  I doubt that he'll be right, but he (and all the other GPL
code writers, including myself) are still within their rights to insist
on it.  We are, as noted, trading work.  I make (most of) my work freely
available (cost); I get free access to the work of all those that use my
work and participate in the game (benefit).

  b) All of the above philosophy on my right to own my own intellectual
work apply to >>my<< intellectual work only.  There is nothing there
that grants me the right to own the intellectual work of others who
HAPPEN to have given me the right to own a copy, or to de facto grant
different copy rights to the derivative work by embedding their work
within my own and then selling it as my own.  I cannot steal whole
verses out of "Sailing to Byzantium" and call them my own.  I can and
did write my own "version":


that is both original work and, shall we say, closely related.
Copyright is often fairly narrow in its interpretation, especially with
the very real possibility of art whose subject is other art or that
addresses the same subject (and hence inevitably shares certain
features), code intended to serve the same purpose as other code

  c) There is nothing in the world stopping Microsoft from independently
developing anything they like, as long as they can show that it is in no
substantive way derived from GPL work.  Certainly nothing has stopped
them from "independently" developing a spreadsheet that all but
destroyed Lotus, an IDE suite that all but destroyed Borland, a word
processor that all but destroyed the myriad of different word processors
that existed at one time I can still remember quite well, a browser that
was working hard on destroying the company founded by the people that
INVENTED the web until stopped (well, slowed down) by an antitrust suit.
Yeats, on the other hand, is probably safe from me, casting a cold eye

With all of this, what right have they (MS) to whine?  

Finally, their entire argument is silly.  "Technology transfer" has
nothing to do with "monopoly maintenance".  To argue that the federal
government cannot achieve the goal of technology transfer of publically
funded work to the private sector if that publically funded work is
actually made publically available is utter nonsense.  A more apropos
argument might be that charging me tax dollars, using those dollars to
develop a new technology, then giving the technology to a company that
is permitted to patent it and turn around and sell it to me >>without
competition<< is pure piracy on the high seas.

Let's do it by the numbers.  If a private company risks private capital
to develop a new technology and then patents it and exploits the hell
out of their patent and all participants get filthy rich, I'd applaud
that as capitalism at its best and cheerfully pay for the new technology
if I needed it and could afford it.  If the federal government risks
public capital to develop the SAME technology and then gives it for free
to some particular group of donor-- I mean "entrepreneurs" who are then
permitted or encouraged to patent it and exclusively make and sell it,
I'd consider that pure corruption.  The ONLY case where it is reasonably
justified is when the patenters are actually the developers and were in
some measure at risk during the development process.  In that case the
protection they get from the patent is a reasonable chance for them to
be rewarded for that risk before the gates are opened.

It is my own personal belief that all publically funded work SHOULD
result in publically owned technology, with only a small, measured
advantage being granted to any companies or individuals who actually did
the work (who are automatically at some risk, just as they would be if
they worked for or were supported by venture capitalists instead of the

None of this has the slightest bit to do with Microsoft, or, really the
GPL (except to note that the federal government would be acting entirely
consistently if they insisted that ALL publically funded and developed
technology or art be GPL'd or GPpatented). All Microsoft is interested
in is being able to incorporate other people's hard work into their own
products without compensation or contractual agreement, and then turning
around and selling -- pardon me, even worse LEASING -- copies to the
general public as if it were their own.  After all, there is NOTHING
STOPPING them from re-engineering the stuff they want to steal, except
that nobody would want to buy it if it isn't compliant with whatever
standard they are rejecting or trying to co-opt.

Tough.  The same laws they are hiding behind when it comes to defending
their monopoly (hiding their source code and vigorously prosecuting
anybody who gets a look and steals a fragment) defend my right to impose
any reasonable conditions on their use of MY code fragments.  One
perfectly reasonable condition is -- I'll show you mine if you'll show
me yours.

This is another one that fits right into the category of the Great
Peruvian Dialogue.  The claim that it is somehow in the public interest
to allow Microsoft (or anybody else) to copyright or patent code or
algorithms that are developed by other parties altogether, with public
funds or not, and openly published under the GPL is so obviously silly
that the only way anyone could possibly take it seriously is if it were
accompanied by a large campaign contribution or an all expense vacation
in Tahiti for the congressman and his family.


Robert G. Brown	             
Duke University Dept. of Physics, Box 90305
Durham, N.C. 27708-0305
Phone: 1-919-660-2567  Fax: 919-660-2525     email:rgb at

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