[Am-info] RFC: attacking Lessig's attack on States's position

[Steve Cohen]

I've not seen the position of Lessig that you're
arguing against. Although your argument seems
convincing to me, still, I should like to know what
Lessig (usually an astute observer) said.  Can you
post a link to it?


--- Hans Reiser <reiser@namesys.com> wrote:
> I am going to email this in today, and thought some
> of you might have 
> comments/suggestions/spottings of typos.
> 
> Hans
> > Technical Flaw in Lessig's Argument Against States
> Position
> 
> Lawrence Lessig's advice to the court has a major
> technical flaw that
> the court should be wary of.
> 
> Software is unique in that "Compiler" technology
> allows consumers to
> effectively reassemble software themselves.  
> 
> A compiler is a computer
> program that takes a set of instructions about how
> to build a program
> (called "source code"), and builds the software. 
> Almost all software
> is actually assembled by compilers not humans, and
> the work of humans
> is almost entirely in creating the source code.
> 
> You have probably never assembled software yourself
> as a consumer
> because:
> 
> * you are not a Fortune 500 company with a staff of
> trained system
> administrators
> 
> * you probably use Windows not Linux, and Windows
> does not give you
>   access to the essential facility known as "source
> code" that your
>   "compiler" needs to reassemble your software
> 
> Because you have never done it yourself, your
> intution may tell you
> that it is not feasible, or that it is not feasible
> for a large
> market.  Beware this intuition, it is simply wrong. 
> The Fortune 500
> are a significant market for antitrust purposes, and
> Linux is rapidly
> moving towards making reassembly by average persons
> a friendly
> experience as well.
> 
> Such an experiential intuition is likely what led
> Lawrence Lessig to a
> deep and fundamental error in his conclusions.
> 
> It is frequently efficient to post-sale integrate
> software for a large
> part of the market, and it is getting more so with
> time.  This is
> deeply different from physical products such as
> cars, in that most
> persons do not find it as effective to buy a
> collection of parts and
> self-assemble because they would have to do the work
> of assembly.
> With software, the computer does the work of
> post-sale assembly, and
> the consumer simply tells the computer to do it,
> goes to make some
> tea, comes back, and the job is done.
> 
> For instance, the business that I own (Namesys, see
> www.namesys.com)
> made its money entirely from sales of a filesystem
> (ReiserFS) that was
> sold separately from the operating system (Linux)
> for the first few
> years of our business.  The revenues from this were
> enough to support
> us.  Paying consumers such as MP3.com would take our
> source code, add
> it to the Linux kernel source code, use a compiler,
> let their computer
> do a few minutes of work to reassemble the kernel,
> and get a better
> filesystem as a result of it.  This allowed MP3.com
> to save $20
> million dollars according to their estimate.  Others
> in my industry
> also sell filesystems separately from operating
> systems
> (www.veritas.com got its start that way, and still
> makes simply
> enormous amounts of money from doing so).
> 
> Notice that I say filesystem.  Your intuitive notion
> of what is an
> operating system probably tells you that the
> filesystem is part of the
> operating system.  You may be tempted to think that
> what is part of
> the operating system is not viable as a product sold
> separately from
> the operating system.  Lessig thought so, and this
> is because he lacks
> experience selling operating system components in
> the Linux/Unix
> programming industry.
> 
> Think of Jefferson Parish, and understand that
> software takes the fine
> distinctions of Jefferson Parish to their extreme.  
> 
> * Software can be integrated in its functioning, and
> yet separate in 
>   its sale, and this means separate as a product for
> purposes of
>   anti-trust law. (Most software products are
> functionally integrated
>   with a separately sold operating system.)
> 
> * Software can be integrated in its physical
> distribution, yet separate
>   in its sale.  (Purchase of a CDROM holding the
> software is often
>   separated from purchase of a license to use, and
> it is often
>   considered efficient by publishers to bundle
> physical distribution
>   without bundling licensing.)
> 
> * Software can be sold and transmitted over the
> Internet with no
>   physical product created at all.
> 
> There is only one characteristic that necessarily
> defines the
> separation of a software product, and that is the
> license.  A license
> is a contract, and contractual tying is illegal
> under the Clayton and
> Sherman acts.
> 
> Yet wait, if software products are so easily
> separable, why aren't
> there far more OS components out there being sold?
> Control over an
> essential facility is the answer.
> 
> There is a reason why the States want Microsoft's
> source code to be
> available to all.
> 
> Secret source code can be an essential facility the
> equal of putting a
> combination lock on every bolt in a car, and then
> declaring the
> combination to be a trade secret.
> 
> You wouldn't allow this for a car, yet traditional
> industry practice
> is that source code is kept a trade secret.  The
> crisis our industry
> is facing, in which monopoly control is the norm in
> all parts of it
> not in infancy, is directly caused by this industry
> practice of secret
> source code.  It is not necessary that the text be
> kept secret for
> copyright protection on books to be maintained, and
> it is also not
> necessary for software that the source be kept
> secret to protect
> ownership of it.  Far from it, the underlying
> historical motivation of
> copyright and patent laws is to bring more
> information out of trade
> secret status.
> 
> We have a widespread well-entrenched industry
> practice that keeps an
> essential facility (source code) under the control
> of monopolists (of
> which Microsoft is merely the largest), and we have
> almost complete
> monopolization of the software industry in each of
> its mature niches.
> These are cause and effect.
> 
> I pray to you to not allow their continuance.  Open
> up the operating
> system source code as the States ask, and go even
> further.  Declare
> that software is per se separable where source code
> is available.
> Declare source code to be an essential facility. 
> Return copyright and
> patent practices to their historical roots, and
> require that
> information created be made public if it is to be
> protected.  
> 
> Please do not hesitate to ask me to comment in
> greater detail or
> respond to your questions in this matter.  I am
> available for in
> 
=== message truncated ===


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