Beyond Bundling: was Intellectual property? Is it a taking?

From: Hans Reiser <reiser@idiom.com>

> John N Bryan wrote:
>
> >
> > In this, Microsoft is not a software company, it is a
> > Zero-Sum-Market-Domination company, that happens to use software
> > as the medium.
> >
> > -JNB
>
> I think people outside the computer industry don't always realize that yes, Bill
> Gates is very sharp, and technically knowledgeable, but at the same time he has
> absolutely no originality or creativity, he is just dead in this area. The thing
> is, he knows this. He knows he can't compete with the startups on ideas. This
> explains his behavior, he competes in the only ways he can: cloning other people's
> ideas and implementing them (often implementing them well), and monopolizing.

It was also said:

>
> When you buy a book you do not have the right to duplicate
>it and sell it. You can read it all. Twice if you care. Reading or
>seeing the material is not the same as a right to further distribute it for
>profit.
>

For me there is one glaring difference. When you buy a book, you are
reasonably assured that you now have the rights to digest the entire works,
all the thoughts, information, illustrations and other content that you
could have sudden interest in. Further, it is no more or less than that
which someone else can obtain. This is not the case with copyrighted
software that does not have source available. It is, has been and will
continue to be a fundamental root of the problems presented by these
events, not to mention the unmentionable associated with code executing
unbeknown to you. What is software if not complex literary works with
the constantly overlooked potential for the inclusion of powerful
operational features that you may or may not be aware of?
Why is there so little interest in the disclosure of the state of this
potential? It is inviting future disasters on many fronts and hobbles
anyone looking to build on a platform or rely on it's veracity.

Closed or incomplete source, a bully pulpit with millisecond effects and
the bully power begins with a subordinate's insecurity, the Sword of
Damocles, having no assurance that your work will not be broken to pieces on
a whim.. Not only are you not assured that what you rely on will not change
without notice or effect, you can not even asses the nature of the changes
to make accommodations if you suspect them. I can recall hard copy
documented system calls in DOS 2.0 that were wrong and did not work as
documented. This was official IBM DOS 2.0 system programming material,
probably as supplied to them. To my knowledge, it was not corrected. This is
going to be some circus, I thought at the time. I believe Andrew Schulman
describes the circus well in many volumes, including some hard looks at the
intellectual property implications of non-documentation. It strikes me when
intellectual property rights can be measured by the extent of control over
entire classes, they are rights that no longer need protection.

Too tempting an opportunity exists to arbitrarily make changes that affect
whole classes, right down to the individual user. Add in the fact that
backup and restore complexities can make it near impossible for the average user
to restore a system to a known working state in a useful time frame and you
could have every day total control weaponry. Closed source has been the most
often brandished strategic weapon in this case, albeit there are other more
conventional ones in the arsenal, ones that are being very thoroughly
addressed and ones that are more easily characterized as anti-trust
behavior. But I feel that the power bases are built on no responsibility for
source and it is still there for anyone to re-trace. When AT&T was axed apart

churning. It will not change much unless the code resources become a raw material.

It has been demonstrated that it doesn't matter where you are in the pecking
order, Intel, Apple, Netscape or just someone with a new idea. Everyone
downstream from invisible source is at constant and real risk of being
annihilated at any time, including the individual user that uses the
Internet or upgrades a package. This can be true for ANY software system
that does not disclose it's source and even for some that do. With those
that do you at least have a cleaner shot at fixing it once. Open source is
not yet a panacea for the average user, but it sure goes a long way to give
the professional or systems house the tools to optimize their offerings to a
market demanding the best and most reliable optimization available instead
of some form of helpless bondage.

In my view, no-responsibility-for-source has been the underlying mechanism
leading to, among other events, the market's abandonment of many viable
applications and innovations on this platform, ones that develop strange,
unpredictable and unserviceable behavior. It's been going on since Lotus
123, plants wither and die in a desert of uncertainty. ("Well I guess it is
no longer being supported, time to shuffle the deck again").

Netscape was no exception here and I would venture a guess was one of the
biggest support headaches of the era. Everyone paid with his or her
inefficient use of time, far more valuable than a few dollars for something
that worked. In my humble opinion, Netscape was well aware of this but was
too involved in programmatic one-upsmanship to revise their strategy and
probably missed the chance to develop a platform solution. They could have
been a Red Hat very easily some time ago.

Nonetheless, there is still a natural tendency to gravitate toward
monolithic systems witnessed by a recent IT survey by Computerworld that
finds IT is not about to change it's strategies. 74 percent feel that the
findings will not change their thinking, 93 percent will not change how they
do business with the vendor. For them, the current state of Microsoft
systems offers substantial value to their businesses. The reason being, I
feel, is the risk of deviation is too fraught with unpredictable peril. The
one question that I felt was missing from the survey was; does IT feel there
is room for improvement if the anti-trust issues are vigorously addressed?

Even if mediation manages to find a satisfactory resolution for all the
disadvantaged souls in this debate without touching the source issue, it is
leaving the door open for a continued opportunity to repeat the exercise,
perhaps not to the current magnitude but nonetheless just as potentially
devastating case by case. Codeless copyright is a right that anyone can
obtain. I notice that talk of changing this is not very popular with most of
the loudest voices. I continue to wonder why. Is it an effort to fragment a
company that maximized the interpretation of a rule but leave the rule
intact for others? Many speak as though Microsoft is an anomaly, a freak
of business. It is just our system running full tilt. They are inviting re-runs

Add to all of this the hostility and finger pointing that is prevalent in
the brilliantly divested communication industry, we have systems that are
becoming more complex and fragile instead of more robust. Reducing the
number of interface complexities and requiring source in the copyright process
will help this new medium to flourish. We could be at the beginning
of a beneficial cycle rather than at the end of one.

It is clear to me that the disclosure of source at the copyright step does
not give license to copy and profit from the works, like books, music or
film. Therefore, it is unnecessary to hide code. I don't see disclosure
inviting illegal copy and sale any more or less than the status quo.
Use and use of source are distinct definable permissions and
remain under the control of the copyright holder. It would be a plus in
contests over flat out plagiarism of large routines if full disclosure was a
requirement to obtain a copyright. All the evidence on both sides will be in
plain view as it is in other forms of publication. Think about that word,
publication.

We also hear the security argument that full disclosure of widely used
systems will create huge security breach opportunities. I disagree. Source
disclosure in copyright will expose these potentials to many more interested
parties who will then call for immediate remedies. Source disclosure in
copyright will also not foreclose a business or individual from creating
secure software for their own use for which no disclosure need ever be made,
unless they intend to sell or license it to others. There is no reason why
high security sites with in-house programmers would be compromised by public
disclosure of mainstream systems.

Microsoft challenges the US Government with the fact that it granted them
the rights to sell, license, give away or do what they please with their
works under the copyrights they were granted. These are rights that they
have relied upon along with everyone else issued a copyright for their
works.

Proprietary and Open platforms from all vendors can coexist and compete in a
cloud of interoperability where all source is disclosed. The difference is
they will much more do so on their own merits. The real solution might be a
legislative one and it looks as though that could be faster, more effective
and more useful to emerging enterprise and it's consumers. Published standards