[Dean's World] Casey Tompkins: Most illogical...

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Posted by Casey Tompkins:
Most illogical...
http://www.deanesmay.com/posts/1141453662.shtml


   Yes, the prodigal son returns. I haven't posted on Dean's World in a
   long time (hell, I don't post on my own blog that much), but I have a
   standing invitation to here regarding science and technology, and
   software/IP certainly fits, so here I am again.

   Recently Dean [1]observed that "the way we treat software isn't the
   most logical way of doing things," and got a bit of grief from a
   couple of commenters who jumped to conclusions about his position...

   It depends on what Dean means by "the IP laws don't make sense." Since
   he hasn't gone into much detail, it's difficult to determine what's
   wrong or right about his position. ;)

   Now, I can pinpoint some of the causes of the current mess. One is how
   software companies in general, and MicroSoft in particular, have
   really confused the issue.

   Back in the days of the dinosaurs (IBM mainframes) you didn't need IP
   because the software came with the hardware, and you could only run a
   particular item on a particular system (or system series), so you
   couldn't run stuff for an IBM 360 on a Vax, for example.

   When microcomputers originally came out, the market was virtually all
   hobbyist; again, no need for IP.

   It really got mucked up when software became a profitable commodity.
   The original mistake was allowing software companies to even use
   copyright as a basis for ownership. In theory it applied to source
   code only. Alas this wasn't good enough for most commercial software
   manufacturers, as they wanted stricter control. According to "classic"
   copyright laws, a work is subject to fair use, so columnists (and now
   bloggers! {g}) could quote specific elements in another work.
   Publishers are required to give copies of their works to libraries,
   which any citizen may access free of charge.

   Phillipe Kahn, founder of Borland, originated a copyright method which
   allowed users to treat their software "just like a book." That is, you
   could loan it to a friend, as long as you weren't using it yourself at
   the same time. It's the difference between loaning a book, and
   photocopying it. His intent was to protect the use of software,
   instead of the source code. A good idea, but it didn't catch on.

   Compaq proved you could legally reverse-engineer a BIOS, so
   copyrighting just the source code proved inadequate for the control
   freaks. I'll point out here that reverse-engineering is distinct from
   de-compiling.

   The next bad idea was the concept of somehow copyrighting a "look and
   feel," pioneered by Lotus when they sued another company that used
   their "/"-command form.

   For those unfamiliar with this ancient classic, Lotus 1-2-3 menu
   commands (recall this was before Windows standardized menus) started
   with a "/". To format a cell you would press the "/" key, then "C" for
   cell, the "F" for format, as opposed to the now-familiar Alt-OE
   (fOrmat cEll) approach found in Excel.

   In any case, Lotus successfully sued a competitor because they used a
   similar menu. Lexigraphically, that's as if JK Rowling sued another
   author for using a distinct font for chapter titles. This set a (bad
   IMHO) precedent that something as nebulous as the general appearance
   of -or the command-keystrokes used in- a program were somehow
   protected "intellectual property." The ultimate irony here is that the
   general approach Lotus used was exactly similar to the now-classic
   VisiCalc program, originally written for the Apple II.

   One should note that up until Windows 95, Microsoft was more than
   happy to ignore the widespread copying of the Windows "operating
   platform" (since it really wasn't a distinct Operating System), as
   that provided them greater market penetration. It was the latest turn
   of the old "razors and blades" strategy. In other words, give away the
   razors (the OS), and sell the blades (applications).

   The problem with this approach was that MS realized that once they
   achieved -for all intents- 100% of the market, they were screwed.
   Their revenue system was based on increasing market share.

   BTW, before the flames start let me point out that I'm not ignoring
   various Linuxi, or Apple. But Apple controls (what?) 5% of the market,
   and all the Linuxi together 3%, maybe.

   Point being was that -until fairly recently- MicroSoft allowed that
   you owned your copy of whatever software you purchased from them. Once
   they faced the challenge of maintaining profit margins in face of
   complete market penetration, that attitude changed.

   Now -if you've been paying attention- MS no longer allows that you own
   a copy of their software. Instead, what you bought was a right, or a
   liscence, to use their software for a limited amount of time.
   Generally the limit is when MS decides to stop supporting a particular
   platform. For example, after July 11, 2006, MS will [2]no longer
   support Win98/Win98SE/WinMe. If you want to keep using it, you're on
   your own, bunky.

   Note the moving target; in the past twenty-five years, we have morphed
   from protecting source code, to protecting "look and feel" (over which
   Apple unsuccessfully sued MS, by the way), to protecting the general
   use of the application.

   I suspect this is not how the Founding Fathers envisioned "promot[ing]
   the progress of science and useful arts." Quite the reverse. As Dean
   said

     The fact that some people have reached the point where they're
     condemning free software shows that there's something nonsensical
     to the core of a lot of our current thinking and practices on this.

References

   1. http://www.deanesmay.com/posts/1141249882.shtml
   2. http://www.microsoft.com/windows/support/endofsupport.mspx